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Opposition group Dakota Rural Action loses effort to delay hearing on state's pollution-control permit

PIERRE -- The contested case on issuing a new version of South Dakota's general permit for concentrated animal feeding operations began Tuesday with an attempt to delay the start.

PIERRE - The contested case on issuing a new version of South Dakota's general permit for concentrated animal feeding operations began Tuesday with an attempt to delay the start.

Kelsea Sutton, the lawyer representing Dakota Rural Action, said the state Department of Environment and Natural Resources didn't provide copies of revised drafts.

"The agency did this wrong and messed up the process," Sutton said.

She noted the permit has expired and was last considered 13 years ago. "We have to do this right."

She said one of the revised drafts never was made available to the parties in the case and Dakota Rural Action never received another revised draft.

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Steve Pirner watched as Sutton made her argument. Pirner is state secretary of environment and natural resources. He would make the decision on the final version of the permit after the three-day hearing this week.

Ellie Bailey, the lawyer for the state's feedlot program, said the department issued the proper public notices. She said the department's exhibit No. 6 contains revisions suggested by various commenters.

She said the different versions were "working drafts" used inside the department and were "the logical outgrowths" of the public comment period.

Two lawyers representing dairy, livestock and poultry businesses opposed Dakota Rural Action's argument as well.

State hearing officer Catherine Duenwald said the sides have been working off the original proposed version of the permit. Duenwald denied Sutton's motion.

Pirner didn't comment or ask any questions during the opening exchange.

Kent Woodmansey, administrator for the state's feedlot program, said the permit serves as a road map for environmental compliance.

The federal and state governments require manure discharges to be regulated so that surface water and underground aquifers aren't polluted.

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Currently South Dakota has 426 concentrated animal feeding operations covered by the general permit that is being revised, according to Woodmansey. He said three operations have individual permits.

CAFO locations must file diagrams of their operations and data about their animal numbers and manure capacity. The general use for the manure is application as a nutrient to crop fields.

More than 1.1 million acres are in nutrient-management plans across South Dakota, he said.

The state's drinking water program isn't aware of any public water supply systems in South Dakota approaching the clean drinking water limit for nitrate of 10 milligrams per liter, according to Woodmansey.

He said that from 1996 to 2010 results from the statewide ground water quality monitoring network showed that 30 percent in 2006 to 17 percent in 2010 of the monitoring sites had nitrates greater than or equal to 10 milligram standard.

None of these monitoring sites are located near known point sources of pollution, Woodmansey said. He pointed out that nonpoint sources of pollution are not regulated.

CAFOs located over a shallow aquifer are required to get a groundwater discharge permit or to conduct groundwater monitoring, he said.

Woodmansey said federal authority was granted to South Dakota in 1993 to issue a general permit. In 1996 the swine industry requested a permit. The department issued a permit in 1997.

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In 1997 the state Department of Agriculture asked for a permit for other animal types. That was issued in 1998.

A revised permit reflecting federal changes was issued in 2002.

The Legislature in 2007 adopted a law, SB 9, requiring concentrated animal feeding operations to obtain either an individual permit or operate under the general permit.

A legal fight ensued in 2008 at the national level. In 2013 EPA and Iowa reached agreement on CAFO permitting. That led South Dakota to consider revising its general permit, Woodmansey said.

In 2015, from April to August, Woodmansey and his staff gathered opinions from a wide variety of government organizations and producer groups.

His office mailed notices to 931 interested parties. Twenty-seven parties filed comments. Eleven parties petitioned to participate in a contested case hearing.

DRA requested a delay on Dec. 8. On Dec. 11 Pirner issued an order for continuance. The department issued a new public notice on Aug. 2.

Among the proposed permit changes are:

Any discharge is a violation except in instances of extreme weather events;

Producers need to verify they've attended training in the past three years. Woodmansey said some producers haven't gone to training since the original permit 20 years ago;

Owners with shares of at least 10 percent must be identified "so bad actors can't hide," Woodmansey said; and Bankruptcy notification.

Sutton, the lawyer for Dakota Rural Action, tried to lay a record showing Woodmansey met with producer groups but didn't meet with any citizen groups. She asked why.

"They asked. Nobody else did," Woodmansey replied.

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