STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY

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2 STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY IN THE MATTER OF THE DECISION ON THE NEED FOR AN ENVIRONMENTAL IMPACT STATEMENT FOR THE PROPOSED JOE AND CHRIS WIENEKE FARMS PROJECT LISMORE TOWNSHIP, NOBLES COUNTY, MINNESOTA FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER Pursuant to Minn. ch. 4410, the Minnesota Pollution Control Agency ( MPCA ) staff prepared and distributed an Environmental Assessment Worksheet ( EAW ) for the proposed Joe and Chris Wieneke Farms project ( Project ). Based on the MPCA staff environmental review, the EAW, comments and information received during the comment period, and other information in the record of the MPCA, the MPCA hereby makes the following Findings of Fact, Conclusions of Law, and Order. FINDINGS OF FACT Project Description 1. Joe and Chris Wieneke ( Proposer ) propose to build a new foot by 192-foot total confinement swine barn ( Project ) to house 2,400 head of finishing swine (720 animal units [ AU ]). The Project is located in Section 22 of Lismore Township in Nobles County, Minnesota. The Proposer s new barn would have an 8 foot deep concrete lined pit below the building to store manure from the swine. 2. The Proposer currently operates two existing feedlots that are part of the same facility ( Facility ). The two feedlots are located in separate Sections; however, the feedlots are separated only by a road. a. The first existing feedlot is in Section 27 of Lismore Township in Nobles County. This feedlot is currently permitted for 1,650 head of beef cattle (1,650 AU), 1,200 head of swine (360 AU), and 90 sheep (9 AU), for a total of 2,019 AU. The Proposer is not changing operations or expanding this feedlot as part of the Project. b. The second existing feedlot is located in Section 22 of Lismore Township in Nobles County and currently houses 2,400 head of finishing swine (720 AU) in a foot by 192-foot total confinement swine barn. The barn has an 8-foot deep concrete lined pit below the building to store liquid manure. c. The two existing feedlots are permitted by the MPCA, but did not require a mandatory EAW under Minn. R , subp. 29. Therefore, the MPCA did not conduct any prior environmental review of the two existing feedlots. TDD (for hearing and speech impaired only): Printed on recycled paper containing at least 30% fibers from paper recycled by consumers

3 On the Need for an Environmental Impact Statement Joe and Chris Wieneke Farms Project Lismore Township, Nobles County Findings of Fact Conclusions of Law And Order 3. On May 27, 2015, the Proposer applied for coverage to add the Project to the two existing feedlots under the Minnesota Livestock Production National Pollutant Discharge Elimination System/State Disposal System General Permit ( NPDES/SDS General Feedlot Permit ). 4. The Proposer must obtain a NPDES/SDS Individual Feedlot Permit rather than the NPDES/SDS General Feedlot Permit because the Proposer has a beef cattle feed pad without runoff controls at the existing Section 22 feedlot. 5. The Proposer has prepared a draft Manure Management Plan ( MMP ) for Transferred Ownership for the manure generated from the Project. All liquid manure from the Project will be applied at agronomic rates according to the MMP. 6. The existing Section 27 feedlot, which will not change under this Project, generates 5,168 tons of solid manure, 466,334 gallons of liquid manure, and 493,433 gallons of wastewater per year from the various types of livestock managed at this feedlot. Since this feedlot is across the road from the Project, activities at this feedlot contribute to the Project s cumulative impacts. 7. After the Project is completed, the Proposer estimates that the Project plus the existing (swine) feedlot in Section 22 will generate a total of 1,230,312 gallons of liquid manure per year. Swine feedlots do not produce solid manure or wastewater. 8. The Proposer currently manages solid and liquid manure under a MMP approved by the MPCA. 9. The Proposer has indicated that 1,703 acres of land are required for the land application of manure generated by the Facility (including the Project); the Proposer currently has approximately 1,738.8 acres available for manure application per year. Approximately half of the manure generated as a result of the Project will be transferred and sold to third parties for application at agronomic rates. Environmental Review of the Project 10. The construction on the existing feedlot in Section 22 began in the fall of When determining whether a mandatory EAW is required and if phased actions must be included, Minn. R , subp. 1 states in part, If the project is an expansion or additional stage of an existing project, the cumulative total of the proposed project and any existing stages or components of the existing project must be included with determining if a threshold is met or exceeded if construction was begun within three years before the date of application for a permit or approval from a governmental unit for the expansion of additional stage but after April 21, 1997, except that any existing stage or component that was reviewed under a previously completed EAW or EIS need not be included. 12. The Project proposes to add 2,400 head of finishing swine (720 AU) adjacent to the existing Section 22 feedlot. The total AU from the construction begun in 2013 and the Project is 1,440 AU. Since the Project is within 3 years of the original construction at the Section 22 feedlot, the phased action provisions of Minn. R , subp. 1, apply. An EAW is mandatory for the Project 2

4 On the Need for an Environmental Impact Statement Joe and Chris Wieneke Farms Project Lismore Township, Nobles County Findings of Fact Conclusions of Law And Order under Minn. R , Subp. 29A, because it involves an expansion of an existing facility by 1,000 AU or more. 13. The feedlot in Section 27 is not expanding and is not part of the phased action here. Section 27 is discussed in these Findings as it is included as part of the amended NPDES/SDS Individual Feedlot Permit. 14. An EAW is a brief document designed to set out the basic facts necessary to determine whether an Environmental Impact Statement ( EIS ) is required for a proposed project or to initiate the scoping process for an EIS (Minn. R. pt , subp. 24). The MPCA is the Responsible Governmental Unit ( RGU ) for preparing the EAW for this Project. 15. The MPCA provided public notice of the Project as follows: a. Notice of the availability of the EAW for public comment was published in the EQB Monitor on August 3, 2015, as required by Minn. R b. The EAW was available for review on the MPCA website at c. The MPCA provided a news release to media in the southern region of Minnesota and other interested parties on August 4, During the 30-day comment period ending on September 2, 2015, the MPCA received comments from the Minnesota Department of Natural Resources ( MDNR ), the Minnesota Historical Society, and the Southwest Regional Development Commission. No comments were received from citizens. The comments are included in Appendix A to these Findings. 17. The MPCA prepared written responses to the comments received during the 30-day public comment period, also included in Appendix A to these findings. 18. The NPDES/SDS Individual Permit for a Concentrated Animal Feeding Operation (CAFO), Permit Number MN ( Feedlot Permit ) was open for comment from August 12, 2015, through September 11, The MPCA did not receive any comments on the Feedlot Permit. Standard for Decision on the Need for an EIS 19. The MPCA shall base its decision on the need for an EIS on the information gathered during the EAW process and the comments received on the EAW (Minn. R , subp. 3). The MPCA must order an EIS for projects that have the potential for significant environmental effects (Minn. R , subp. 1). In deciding whether a project has the potential for significant environmental effects, the MPCA must compare the impacts that may be reasonably expected to occur from the Project with the criteria set forth in Minn. R , subp. 7. These criteria are: A. Type, extent, and reversibility of environmental effects. B. Cumulative potential effects. The responsible governmental unit (RGU) shall consider the following factors: whether the cumulative potential effect is significant; whether the contribution from the project is significant when viewed in connection with other 3

5 On the Need for an Environmental Impact Statement Joe and Chris Wieneke Farms Project Lismore Township, Nobles County Findings of Fact Conclusions of Law And Order contributions to the cumulative potential effect; the degree to which the project complies with approved mitigation measures specifically designed to address the cumulative potential effect; and the efforts of the proposer to minimize the contributions from the project. C. The extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority. The RGU may rely only on mitigation measures that are specific and that can be reasonably expected to effectively mitigate the identified environmental impacts of the project. D. The extent to which environmental effects can be anticipated and controlled as a result of other available environmental studies undertaken by public agencies or the project proposer, including other EISs. Type, Extent, and Reversibility of Environmental Effects 20. The MPCA finds that the types of impacts that may reasonably be expected to occur from the Project include: Water quality impacts related to runoff from the Project and cropland used for land application of manure; and, Air quality impacts related to emissions of hydrogen sulfide, ammonia, and odorous compounds. 21. Written comments received during the comment period identified the potential for manure to be land applied in close proximity to water bodies designated as critical habitat for the Topeka Shiner (fish), and at sites that are near and/or up-gradient of the city of Adrian drinking water system management areas ( DWSMA ). With respect to the extent of impacts that are reasonably expected to occur from the Project, the MPCA makes the following findings. Impacts to Groundwater and Surface Water Quality 22. The Feedlot Permit requires the Proposer to house all swine livestock in total confinement buildings with no access to surface waters. The Proposer will store manure in below-ground reinforced concrete pits that meet the design criteria of Minn. R The Feedlot Permit requires both feedlots in Section 27 and 22 as well as the Project to meet a zero discharge standard. 24. The Feedlot Permit requires that the Proposer develop and maintain a stormwater pollution prevention plan that includes erosion prevention and sediment control best management practices ( BMPs ) for the construction and operation of the Project, and to keep the plan on site. 25. In order to avoid contaminating the groundwater at the manure application sites, the Feedlot Permit and the MMP require the Proposer and the owner of the transferred manure to apply the manure at agronomic rates, based on the type of crop grown, the soil type and the soil chemistry. 4

6 On the Need for an Environmental Impact Statement Joe and Chris Wieneke Farms Project Lismore Township, Nobles County Findings of Fact Conclusions of Law And Order The Proposer and owner of the transferred manure must take into account levels of nitrogen used by crops planted at the manure application sites thereby minimizing the potential for nitrates leaching into the groundwater. 26. The land application of manure, if done improperly, can adversely impact surface-water resources through manure-laden runoff or manure residue leaching into drain tile lines that outfall to surface waters. The owners of all manure application sites must comply with MPCA and/or county setbacks, as well as all other applicable federal and state rules, whatever is most restrictive, around drain tile intakes located within and adjacent to manure application areas, and near other surface water resources to prevent adverse impacts to surface waters through manure runoff or residue leaching. 27. As noted in the EAW, Minn. R subp. 6 require the Proposer and owners of manure application sites, within the vicinity of a DWSMA and/or Wellhead Protection Area, to manage land application of manure in accordance with Minnesota rules governing land application of manure, or by local restrictions, whichever is more stringent. 28. The majority of manure application will occur during the late fall. The timing reduces the likelihood of significant rain events and allows manure incorporation into the soil as soon as time and field conditions allow. Owners of manure application sites must follow all applicable required setbacks from sensitive features and waterways. The land application practices are included in the MMP, which once approved by the MPCA, becomes an enforceable provision of the Feedlot Permit. 29. Minnesota s Final Animal Agriculture Generic Environmental Impact Statement (2002) and the University of Minnesota Agriculture Extension program state that manure not only supplies nutrients, but can also improve the biological and physical properties of soil, making it more productive and less erosive. 30. Manure, when properly used as part of a soil management program, improves soil quality, builds soil structure, and increases the level of soil organic matter. Commercial fertilizers cannot provide these same improvements to soil properties. 31. The Proposer s land application sites already use manure rather than commercial fertilizer. Third party land owners and applicators may alternate between commercial fertilizers and manure for differing reasons, but have this additional manure resource available. 32. Nutrients from manure tend to replace nutrients provided by other fertilizers and improve soil tilth through the use of organic fertilizer, and immediate incorporation of manure has the potential to improve runoff characteristics over the acres receiving manure under the MMP. 33. The MPCA expects that the requirements of the Feedlot Permit and the MMP will minimize the potential for manure applied at manure application sites to come in contact with runoff and enter surface waters. The MPCA expects that quality of runoff from land application areas for the manure will not significantly change if managed in accordance with the MMP required by the Feedlot Permit. 5

7 On the Need for an Environmental Impact Statement Joe and Chris Wieneke Farms Project Lismore Township, Nobles County Findings of Fact Conclusions of Law And Order 34. The Proposer will not install any wells as a part of this Project. The Proposer will obtain water for the Project from the Lincoln-Pipestone Rural Water ( LPRW ) utility company as a drinking water source for the livestock. The LPRW utility company has multiple wells in multiple well fields. The LPRW utility company has seven MDNR-administered, Individual Water Appropriation Permits with an authorized capacity of approximately 1,175 million gallons of water. The LPRW utility company also purchases water from other sources (out-of-state). These well fields and outside sources work together to provide water to users through a system of pipes and storage facilities in the region and are monitored via meters for each site. 35. The MPCA finds that the Feedlot Permit conditions and MMP requirements will mitigate the potential for adverse impacts on water quality related to manure incorporated at the manure application sites. With respect to the reversibility of water quality impacts that are reasonably expected to occur from this Project, the MPCA makes the following findings. 36. The Feedlot Permit addresses the prevention of adverse effects on water quality due to manure storage and application. 37. The MPCA does not expect significant adverse impacts to water quality. However, if water quality impacts were to occur, the operation and management of the feedlot and the Feedlot Permit and MMP can be modified and impacts to waters could be reversed. Therefore, the MPCA finds water quality impacts that are reasonably expected to occur from the Project to be reversible. 38. The MPCA finds that information presented in the EAW and other information in the environmental review record are adequate to assess potential impacts to water quality that are reasonably expected to occur from the Project. The MPCA has developed measures to prevent or mitigate these impacts and included these as permit conditions. 39. The MPCA finds that the Project, as it is proposed, does not have the potential for significant environmental effects based on the type, extent, and reversibility of impacts related to water quality that are reasonably expected to occur. Impacts Related to Air Quality 40. The Proposer conducted air quality modeling required for feedlots undergoing environmental review, which estimated the atmospheric concentrations of hydrogen sulfide and ammonia and the intensity of odorous gases at the Project s property lines as well as the Project s 22 nearest neighbors. The model also considered the air emissions from 12 neighboring feedlots in that same area. The modeling protocol and report were reviewed and approved by the MPCA. Hydrogen Sulfide Emissions 41. Modeling results obtained from the American Meteorological Society/Environmental Protection Agency Regulatory model ( AERMOD ) model indicated that the Project will not violate the Minnesota ambient air quality standard for hydrogen sulfide. The AERMOD-predicted maximum 6

8 On the Need for an Environmental Impact Statement Joe and Chris Wieneke Farms Project Lismore Township, Nobles County Findings of Fact Conclusions of Law And Order project-specific contribution to the ambient hydrogen sulfide concentration was 7.01 parts per billion ( ppb ). When a background hydrogen sulfide concentration of 17 ppb was added to the AERMOD prediction, the maximum property-line hourly concentration was ppb, which indicates that the half-hour standard of 30 ppb will not be exceeded. 42. The AERMOD modeling results also indicated that the Project will not cause the subchronic hydrogen sulfide inhalation Human Risk Value (ihrv) to be exceeded at the neighboring residences. The estimated facility-specific maximum monthly hydrogen sulfide concentration for a neighboring residence is 0.89 μg/m3. When a background concentration of 1.00 μg/m3 is added to the AERMOD estimate, the maximum monthly hydrogen sulfide concentration for a neighboring residence is 1.89 μg/m3, which is below the subchronic hydrogen sulfide ihrv of 10 μg/m The MPCA does not expect violations of the hydrogen sulfide standard or exceedances of the subchronic hydrogen sulfide ihrv to occur as a result of the Project. Ammonia Emissions 44. The AERMOD modeling results for ammonia suggests that the Project will not exceed the acute ammonia ihrv. The AERMOD model predicted a maximum hourly property-line ammonia concentration of 1,192 µg/m 3. When a background concentration of 148 µg/m 3 is added to the AERMOD prediction, the maximum property-line ammonia concentration is 1,340 µg/m 3, which is below the acute ammonia ihrv of 3,200 µg/m The AERMOD results also indicated that the Project will not cause ambient air concentrations of ammonia to exceed the chronic ammonia ihrv at the neighboring residences. The estimated maximum one-year time-averaged ammonia concentration for the feedlot s neighbors was µg/m 3. When a background ammonia concentration of 5.72 µg/m 3 was added to the AERMOD estimate, the maximum annual ammonia concentration for a neighboring residence is µg/m 3, which is below the chronic ammonia ihrv of 80 µg/m The MPCA does not expect exceedances of the acute or chronic ammonia ihrv as a result of the Project. Odor Emissions 47. Ambient air quality standards are not established to regulate odor in Minnesota. The AERMOD results indicate that construction and operation of the Project would not contribute to odor levels above an odor intensity of 55 odor units ( OU )/m 3, defined as a faint odor, at nearby residences. 48. The odor modeling conducted at the Proposer s property line and nearby residents within a 3 x 3 mile domain shows maximum hourly odor intensity of 120 OU, which is above the faint odor threshold of 72 OU and below the moderate odor threshold of 214 OU. However, the modeling indicates that the frequency at which off-site odor intensities exceed the threshold for faint odors is 0.19% of the time. By definition, a faint odor can be detected by an average person if attention is called to the odor. Otherwise, the odor would not be noticed. Thus, the MPCA expects that more than 99% of the time, an average person would not detect off-site odors. 7

9 On the Need for an Environmental Impact Statement Joe and Chris Wieneke Farms Project Lismore Township, Nobles County Findings of Fact Conclusions of Law And Order 49. The Proposer has submitted an air emissions and odor management plan with the NPDES/SDS General Feedlot Permit application for the Project. The Proposer will empty below-ground reinforced concrete manure storage pits once per year in the fall. The Proposer will use a pit additive to reduce odors associated with anaerobic conditions in the liquid manure storage pits. In addition, the Proposer will inject all of the manure into the soil upon land application, thus reducing odor potential at the time of application. Although there will be odors, because manure is a source of odor, the total confinement facility design will also help to mitigate odors by limiting exposure to the atmosphere. 50. With respect to the reversibility of air quality impacts that are reasonably expected to occur from the Project, air emissions from the Project will continue while it remains in operation and would cease only if the Project were to be temporarily or permanently closed. While the Project is in operation, the MPCA expects the Project to meet applicable air quality standards and criteria. 51. If excessive air emissions or violations of the ambient hydrogen sulfide air standards were to occur, or if ihrvs for ammonia were exceeded, air quality impacts are likely to be temporary in nature and corrective measures would be implemented. Such measures could include the initiation of a complaint investigation by the MPCA and requiring the Proposer to make operation and maintenance changes. Therefore, the MPCA finds that the impacts on air quality that are reasonably expected to occur from the Project are reversible. 52. The MPCA finds that information presented in the EAW and other information in the environmental review record is adequate to address the concerns related to air quality. The MPCA has considered the impacts on air quality that are reasonably expected to occur from the Project during the review process and finds that appropriate mitigation measures are available and will be required if necessary to prevent significant adverse impacts. 53. The MPCA finds that the Project, as it is proposed, does not have the potential for significant environmental effects based on the type, extent, and reversibility of impacts on air quality that are reasonably expected to occur from the Project. Cumulative Potential Effects 54. The second criterion that the MPCA must consider when determining if a project has the potential for significant environmental effects is the cumulative potential effects. In making this determination, the MPCA must consider whether the cumulative potential effect is significant; whether the contribution from the project is significant when viewed in connection with other contributions to the cumulative potential effect; the degree to which the project complies with approved mitigation measures specifically designed to address the cumulative potential effects; and the efforts of the proposer to minimize the contributions from the project (Minn. R subp.7.b.) The MPCA findings with respect to this criterion are set forth below. 55. The MPCA s analysis of the Project includes consideration of the existing Section 22 feedlot barn, constructed in 2013, which is a phased action under Minn. R , subp. 60). In Section 22, 8

10 On the Need for an Environmental Impact Statement Joe and Chris Wieneke Farms Project Lismore Township, Nobles County Findings of Fact Conclusions of Law And Order the Proposer currently operates a foot by 192-foot total confinement swine barn that houses 2,400 head of finishing swine (720 AU). The barn has an 8-foot deep concrete lined below building pit to store manure generated by the swine. The MPCA s analysis of cumulative potential effects considered both the initial 2013 construction and the current aggregate effects of past actions (Minn. R , sub. 11a). 56. The EAW, public comments, and MPCA follow-up evaluation did not disclose any related or anticipated future projects that may interact with this Project in such a way as to result in significant cumulative potential environmental effects. 57. The EAW evaluated the cumulative potential effects for the Project on: Air quality Water quality Cumulative Potential Effects on Air Quality 58. The MPCA evaluated cumulative potential effects on air quality by comparing the Minnesota ambient air quality standards for hydrogen sulfide, ihrvs for ammonia, and odor intensity thresholds with concentrations in the air predicted by air modeling. The modeling analysis included the estimated emissions from the Project and incorporated conservative background concentrations to account for the potential impacts of air emissions from other feedlots. Air concentrations were estimated for these pollutants at the 22 residences closest to the Project. 59. All modeled concentrations were below the health-based and nuisance odor criteria used in the analyses. Therefore, the MPCA has determined that cumulative potential effects on air quality will not be significant in the Project area, and the Project will not contribute significantly to adverse cumulative potential effects on air quality. Cumulative Potential Effects on Water Quality 60. The Project, both existing Section 22 and 27 feedlots, and the proposed manure application sites are all located within the Rock River Watershed. Land use in the watershed is primarily agricultural, dominated by animal and crop production. 61. The Rock River Watershed includes Elk Creek, listed as impaired on the Federal Clean Water Act 303(d) list for aquatic life based on water quality standards for turbidity. Activities related to surface water impairments in the Rock River Watershed originate from a combination of anthropogenic point source (e.g., inadequately functioning septic systems) and nonpoint source (e.g., agricultural activities) discharges. 62. Elk Creek is the closest water course in the same watershed listed on the 2012 Impaired Waters List as requiring a Total Maximum Daily Load ( TMDL ). Elk Creek is located within approximately 1.0 mile of the majority of the manure application sites in Lismore Township. The Rock River Fecal Coliform TMDL Report (MPCA Fecal Coliform and Turbidity Assessment for the Rock River Watershed, February 2008) lists incorporated manure as a Low-Moderate contributor to fecal coliform bacteria in the watershed, depending on climatic conditions. Although TMDLs have not 9

11 On the Need for an Environmental Impact Statement Joe and Chris Wieneke Farms Project Lismore Township, Nobles County Findings of Fact Conclusions of Law And Order been initiated at this time, there has been additional work done to identify stressors, and candidate causes for impairments as well as Monitoring/Assessment Reports prepared for the Rock River Watershed, as part of work for the Missouri River Basin Watershed as a whole (September 2014, Missouri River Basin - Upper Big Sioux, Lower Big Sioux, Little Sioux, and Rock River Watersheds Monitoring and Assessment Report). 63. The proposed manure application sites are in the Rock River Watershed. Land use in the Rock River Watershed is primarily cropland. 64. Typical strategies identified for preventing and managing impairments related to manure include buffer strips and buffer set-aside acreage in the Conservation Reserve Program, nutrient and manure management and residue management. The Proposer is currently using the most applicable measures in the MMP for the manure generated at the existing feedlots in Section 22 and 27, and will also be required to use the most applicable measures in the MMP that is to be incorporated as an enforceable part of the Feedlot Permit once issued. 65. When a lake becomes eutrophic, it is more likely to experience nuisance algal blooms. Large algal blooms in a lake reduce the lake s water clarity and desirability for recreational use. Animal manure is one of many potential sources of phosphorus in a lake watershed. For waters that are impaired, the MPCA must conduct studies that will identify and assess the sources of phosphorus in the watershed and then determine an appropriate total maximum daily load ( TMDL ) of phosphorus for each lake and load allocations for all types of sources. 66. As TMDLs move forward, implementation plans will include measures for preventing and managing manure, including those already required through feedlot permit and MMP requirements. 67. The Feedlot Permit requires that the Project meet zero discharge standards. As a result, there should be no discharge of manure or manure-contaminated runoff to any waters of the state. 68. The MMP, which becomes an enforceable part of the Feedlot Permit once it has been approved by the MPCA, is designed to be specific to the Project s expected manure generation, proposercontrolled and/or third party manure application sites, in order to prevent adverse impacts to any waters of the state. 69. Proper operation and management of the Project will prevent the runoff of manure and manurecontaminated stormwater from impacting waters of the state, whether or not those waters are impaired. 70. Appropriate manure land application practices in adherence with the MPCA-approved MMP for Proposer/Transferred Manure Ownership, will prevent the runoff of manure and manurecontaminated stormwater from causing any adverse impacts to waters of the state, whether or not waters are impaired. 71. Since the potential effects of the Project on water quality are addressed through the MMP and Feedlot Permit, the MPCA does not anticipate the Project will contribute to any potential adverse 10

12 On the Need for an Environmental Impact Statement Joe and Chris Wieneke Farms Project Lismore Township, Nobles County Findings of Fact Conclusions of Law And Order effect on water quality. Therefore, the MPCA does not expect the Project to contribute significantly to adverse cumulative potential effects on water quality. 72. Based on information on the Project obtained from the air modeling report, Feedlot Permit application processes, and information on surface water quality in the Project area presented in the EAW, and in consideration of potential effects due to related or anticipated future projects, the MPCA does not expect significant cumulative effects from this Project. 73. The MPCA finds that the Project, as it is proposed, does not have the potential to contribute to any significant environmental effects related to cumulative potential effects that are reasonably expected to occur. The Extent to Which the Environmental Effects Are Subject to Mitigation by Ongoing Public Regulatory Authority 74. The third criterion that the MPCA must consider when determining if a project has the potential for significant environmental effects is "the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority. The RGU may rely only on mitigation measures that are specific and that can be reasonably expected to effectively mitigate the identified environmental impacts of the project." Minn. R , subp. 7.C. The MPCA findings with respect to this criterion are set forth below. 75. The following permits or approvals will be required for the Project: Unit of Government MPCA Nobles County Permit or Approval Required Livestock Production NPDES/SDS Individual Feedlot Permit and Manure Management Plan, which includes construction stormwater requirements Conditional Use Permit 76. NPDES/SDS Individual Feedlot Permit. An NPDES/SDS Individual Feedlot Permit, which includes the construction stormwater ( CSW ) requirements, is required for the Project. The NPDES/SDS Individual Feedlot Permit incorporates construction and operation requirements, and includes operating plans that address manure management, emergency response protocols, and odor/air quality management. The construction and operating requirements and plans attached to the Permit are enforceable conditions of the NPDES/SDS Individual Feedlot Permit. The NPDES/SDS Individual Feedlot Permit incorporates provisions of the CSW permit pertinent to livestock operations, thus the Project is not required to apply separately for coverage under the CSW permit. The MMP, once approved by the MPCA, becomes an enforceable provision of the Feedlot Permit. 77. Nobles County Conditional Use Permit. The Proposer is required to obtain a conditional use permit from Nobles County to comply with local zoning, environmental, regulatory, and other requirements that are needed to avoid adverse effects on adjacent land uses. 11

13 On the Need for an Environmental Impact Statement Joe and Chris Wieneke Farms Project Lismore Township, Nobles County Findings of Fact Conclusions of Law And Order 78. The above-listed permits include general and specific requirements for mitigation of environmental effects of the Project. The MPCA finds that the environmental effects of the Project are subject to mitigation by ongoing public regulatory authority. The Extent to Which Environmental Effects can be Anticipated and Controlled as a Result of Other Available Environmental Studies Undertaken by Public Agencies or the Project Proposer, Including Other EISs 79. The fourth criterion that the MPCA must consider is the extent to which environmental effects can be anticipated and controlled as a result of other available environmental studies undertaken by public agencies or the project proposer, including other EISs, Minn. R , subp. 7. D. The MPCA findings with respect to this criterion are set forth below. 80. MPCA staff reviewed the following documents as part of the environmental impact analysis for the Project. Data presented in the EAW Permit applications Air Dispersion Modeling Report Permits and environmental review of similar projects 81. This list is not intended to be exhaustive. The MPCA also relies on information provided by the Project Proposer, persons commenting on the EAW, staff experience, and other available information obtained by staff. 82. The environmental effects of the Project have been addressed by the design and permit development processes, and by ensuring conformance with regional and local plans. There are no elements of the Project that pose the potential for significant environmental effects 83. Based on the environmental review, previous environmental studies by public agencies or the Project Proposer, and staff expertise and experience on similar projects, the MPCA finds that the environmental effects of the Project that are reasonably expected to occur can be anticipated and controlled. 84. The MPCA adopts the rationale stated in the attached Response to Comments (Appendix A) as the basis for response to any issues not specifically addressed in these Findings. CONCLUSIONS OF LAW 85. The MPCA is the governmental unit responsible for determining the need for an EIS for this Project. 86. The EAW, the permit development process, and the evidence in the record, are adequate to support a reasoned decision regarding the potential significant environmental effects that are reasonably expected to occur from this Project. 12

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15 APPENDIX A Minnesota Pollution Control Agency Joe and Chris Wieneke Farms (Project) Environmental Assessment Worksheet (EAW) LIST OF COMMENT LETTERS RECEIVED 1. Sarah Beimers, State Historic Preservation Office. Letter received August 31, Kevin Mixon, Minnesota Department of Natural Resources. Letter received August 31, Robin Weis, Southwest Regional Development Commission. Letter received September 2, RESPONSES TO COMMENTS ON THE EAW 1. Sarah Beimers, State Historic Preservation Office (SHPO). Letter received August 31, Comment 1-1: The SHPO concluded that there are no properties listed in the National or State Registers of Historic Places, and no known or suspected archaeological properties in the area affected by this Project. Response: The Minnesota Pollution Control Agency (MPCA) has made note of the comment provided by the SHPO. 2. Kevin Mixon, Minnesota Department of Natural Resources (MDNR). Letter received August 31, Comment 2-1: The MDNR notes that the information contained within the EAW under the state-listed species, rare plant communities, and other sensitive ecological resources is not consistent with the March 19, 2015, Natural Heritage Review letter. Response: The EAW incorrectly includes the Pugnose shiner as a state-listed species of concern for this Project. The MDNR correctly notes the proximity of several of the manure application sites to water bodies, including those federally designated as critical habitat for the Topeka Shiner. The Topeka Shiner is a federally-listed endangered species and a state-listed special concern fish species. The MDNR also lists Blanchard s cricket frog, a state-listed endangered species at four locations within a one-mile radius of the Project. Based on the MDNR s review, there are eight (rather than seven as depicted in the EAW) known occurrences of rare species or native plant communities within an approximate one-mile radius of the Project site or a manure application site used by the Proposer. Comment 2-2: The MDNR notes that several manure application sites are located adjacent to public watercourses such as Elk Creek. The MDNR advises that the U.S. Fish and Wildlife Service (USFWS) designates critical habitat for Topeka Shiners as indicated in Attachment G [to the EAW].

16 Joe and Chris Wieneke Farms Nobles County, Minnesota Responses to Comments on the Environmental Assessment Worksheet Response: The MDNR correctly notes the proximity of several of the manure application sites to water bodies, including those federally designated as critical habitat for the Topeka Shiner. The Topeka Shiner is a federally-listed endangered and state-listed special concern. The Proposer has applied for coverage of both the Existing Facility and the Expansion Facility under the General Concentrated Animal Feedlot Operation (CAFO) Livestock Production Permit, National Pollutant Discharge Elimination System Permit/State Disposal System Permit MN (NPDES/SDS General Feedlot Permit). The NPDES/SDS General Feedlot Permit requires the Permittee to develop, maintain, implement, and annually update a Manure Management Plan (MMP), and also outlines requirements of what is to be included in the MMP. The MMP, once approved by the MPCA, becomes an enforceable part of the NPDES/SDS General Feedlot Permit. The Proposer has stated in the EAW as well as the draft submitted MMP that liquid manure will be land applied via soil injection. Land application of manure to any fields, regardless of the ownership of the field, or manure, must comply with the setback to water requirements of Minn. R. ch These setbacks have been developed to provide protection to water resources. In addition, must be done in accordance with the most stringent of applicable state and federal rules. For example, the NPDES/SDS General Feedlot Permit prohibits the application of liquid manure during winter time conditions, and places restrictive conditions on the application of solid manure during the winter period as well. Furthermore, land application must be done in accordance with the most stringent of applicable state and federal rules. For example, if county setback requirements are more stringent than the state feedlot rules (Minn. R ), the county setback requirements are to be followed. If the MDNR Shoreland Management requirements or the newly adopted Riparian Protection and Water Quality Practices Act are applicable, and either/both are more stringent than either or both local or state feedlot setback requirements, these are to be met. Comment 2-3: The MDNR Letter [Attachment G to the EAW] also recommended coordination with the USFWS concern potential impacts to Topeka shiners. The EAW did not include any correspondence with the USFWS concerning the manure application sites that are directly adjacent to the designated habitat for the species. The MDNR recommends that coordination occur with the USFWS Twin Cities Field Office prior to MPCA approval [issuance] of the Feedlot Permit and Manure Management Plan. Response: Please see responses to 2-2. The MPCA NPDES/SDS General Feedlot Permit requirements have been developed to ensure applicable requirements are met, including but not limited to land application sites located near waters of the state. Comment 2-4: The MDNR notes that several manure application sites adjacent to public watercourses. The newly adopted Riparian Protection and Water Quality Practices (Minn. Stat. 103F.48) requires a 50-foot perennial rooted vegetated buffer from public waters that is designed to protect the state s water resources. The MPCA should review the new statute to ensure the MPCA 25-foot setback from lakes and streams and MDNR protected wetlands for manure incorporation for phosphorus management, is in compliance with the required 50-foot average width vegetated buffer from public waters as required by Minn. Stat. 103F.48. 2

17 Joe and Chris Wieneke Farms Nobles County, Minnesota Responses to Comments on the Environmental Assessment Worksheet Response: MPCA staff is familiar with the new legislation that has been adopted. Because of the brief time frame since the adoption of this legislation, many of the requirements included in this legislation have not yet been implemented or required (for example, the requirements for local water resources riparian protection are to be in place by July 1, 2017, the MDNR s creation of a buffer protection map, with buffers on public waters, are to be in place by November 1, 2017, and buffers on public drainage systems are to be in place by November 1, 2018). However, unless specifically exempted in the legislation, standard provisions of the NPDES/SDS feedlot permits, as well as those of other permits, require permittees to meet all applicable state and federal rules, including the new statute. Where there are conflicting requirements, including setbacks for land application of manure, unless specifically exempted in law, the permittee is required to follow the most stringent requirement applicable. Comment 2-5: The MDNR notes the Nobles County Land Use Ordinance under Tributary Watercourses (609.37), indicates the General Manure Management Regulations for streams and rivers for incorporation is 50 feet. Response: The Proposer s MMP identifies that manure will be incorporated within 12 hours in such areas. Comment 2-6: Future EAWs and permits should clearly indicate the required setbacks from public waters based on the standard MPCA Animal Waste Land Application Setback Distances, County Zoning Ordinances, or Minn. Stat. 103F.48. Increase the manure incorporation to the required 50-foot public waters buffer will improve water quality and benefit the Topeka shiner (federally-listed). Response: See response to 2-4. The MPCA notes the comment. The MPCA notes that the Proposer s MMP, which is an enforceable part of the NPDES/SDS General Feedlot Permit, has been approved, and includes maps and aerial photos showing field locations, acreage, and sensitive features. The Minnesota feedlot rules as well as the NPDES/SDS General Feedlot Permit requires the MMP include identification of fields not suitable for land application manure, and special measures to be taken in drinking water supply management areas where the well is vulnerable. Owners and applicators of transferred manure are required to follow the Minnesota feedlot rules. The use of land application sites may vary from year to year. In addition, owners of transferred manure are required to submit information to the Proposer about the land application of the transferred manure. The Proposer is required to keep this on file. As the MMP must be annually updated, the Proposer s MMP is going to have the most current and accurate information on manure management, including the information about land application sites. This is a public document, and available upon request. 3. Robin Weis, Southwest Regional Development Commission (SWRDC). Letter received August 5, Comment 3-1: The SWRDC identified drinking water supply management areas designated by the Minnesota Department of Health (MDH), and public water supply wells located within two miles of the Project. A contact was made to the city of Adrian regarding drinking water. Response: The MPCA determined the three public water supply wells are not considered susceptible to contamination from manure application sites because the wells meet MDH construction standards. 3

18 Joe and Chris Wieneke Farms Nobles County, Minnesota Responses to Comments on the Environmental Assessment Worksheet Comment 3-2: The SWRDC identified that there are state-listed species, rare plant communities, etc. on or in close proximity to the Project. The MDNR recommends that the Project be designed to avoid impacts, and manure application rates be carefully managed to ensure the nutrient input does not exceed the ability for crop nutrient uptake which may result in runoff to this ecologically significant area. Response: The MPCA has made note of the comment provided by the SWRDC. Comment 3-3: Wieneke Farms are asking for a variance from the Board of Adjustment to be closer to the north property line than the 100 foot required by county ordinance. They will also need a Conditional Use Permit from the Nobles County Board as they are expanding over 1,000 Animal Units (AU). Response: The MPCA has made note of the comment provided by the SWRDC. Comment 3-4: The Project will need to request a Conditional Use Permit from the Nobles County Feedlot Ordinance. Ordinance requires new or existing feedlot with a capacity of more than 1,000 AUs be one mile from a rural residence. Response: The MPCA has made note and concurs with the comment provided by the SWRDC. The EAW does reference the requirement to obtain a conditional use permit from Nobles County, Minnesota. 4

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