Waukon Dairy Findings of Fact, Conclusions of Law and Order

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November 18, 2020

TO: INTERESTED PARTIES

RE: Waukon Dairy

The Minnesota Pollution Control Agency (MPCA) has approved the Findings of Fact, Conclusions of Law, and Order for a Negative Declaration on the need for an Environmental Impact Statement on the Waukon Dairy. The Findings of Fact, Conclusions of Law, and Order document concludes that this project does not have the potential for significant environmental effects. The decision for a Negative Declaration completes the state environmental review process under the revised Environmental Quality Board rules, Minn. R. ch. 4410. Final governmental decisions on the granting of permits or approvals for the project may now be made.

These documents are available for review at the Minneapolis Public Library at 300 Nicollet Mall, Minneapolis (see the Minneapolis Public Library website at https://mplslibrary.com/ for COVID-19 access information). They can also be viewed at the Crookston Public Library, 110 N Ash Street. Mailing of this document will be delayed due to MPCA staff working remotely, and to save on printing resources, the mailing will not include the many comments on the EAW. However, the complete document is available on the MPCA website at https://www.pca.state.mn.us/regulations/projects-under-mpca-review.

We want to express our appreciation for comments submitted on the Environmental Assessment Worksheet. Comments and responses to them have been incorporated into the Findings of Fact, Conclusions of Law, and Order and have been considered by MPCA staff during the permit process for the proposed project.

Sincerely,

Dan R. Card, P.E.

Dan R. Card, P.E. Supervisor, Environmental Review Unit St. Paul Office Resource Management and Assistance Division

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p-ear2-175b STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY

IN THE MATTER OF THE DECISION ON THE NEED FOR AN ENVIRONMENTAL IMPACT STATEMENT FOR THE PROPOSED WAUKON DAIRY FINDINGS OF FACT WAUKON TOWNSHIP CONCLUSIONS OF LAW NORMAN COUNTY, MINNESOTA 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 Waukon Dairy. 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. Riverview, LLP (Riverview) proposes to construct a new dairy feedlot in Section 32 of Waukon Township, Norman County (Project).

2. The Project consists of the following:  One 16’ x 32’ enclosed shed with concrete floor for the temporary storage of dead animals (facility 107)  One 610’ x 1,200’ cross ventilated confinement free-stall barn with concrete floor (facility 110) that will house 8,900 animal units (AU) of Jersey cows  One 610’ x 40’ covered vehicle drive alley (facility 111) that connects facility 110 and 112  One 610’ x 320’ cross ventilated confinement free-stall barn with concrete floor (facility 112) that will house 1,600 AU of Jersey cows  One 72’ x 80’ shop (facility 113)  One 12,000-gallon aboveground diesel fuel storage tank and containment area (facility 114)  One 72’ x 265’ holding pen with concrete floor (facility 115) that will temporarily house milk cows that Riverview transports to the milking parlor (117)  One 150’ x 240’ milking parlor (facility 117)  One stormwater lift station (facility 118)  One 815’ x 885’ asphalt pad for storage of covered feedstuffs (silage, haylage, etc.) (facility 122)  One 145’ x 240’ enclosed shed with concrete floor (facility 123) that will hold multiple feedstuffs  One 100’ x 200’ shed with gravel floor for dry straw bale storage (facility 124)  Two stormwater basins (facilities 201 and 202)  Two on-site apartment buildings (facilities 119 and 120)  Three production wells for dairy use (Riverview will install these along the western side of the Project)

Printed on recycled paper containing at least 30% fibers from paper recycled by consumers On the Need for an Environmental Impact Statement Findings of Fact Waukon Dairy Conclusions of Law Waukon Township, Norman County And Order

 One potable well for domestic use  One septic system (Riverview will install this adjacent to the apartment building)  One weight scale (facility 114)  Three 575’ x 575’ clay-lined liquid manure storage area (LMSA) basins that are 21’ deep (facilities 101, 103, and 104) with a synthetic cover  One 150’ x 425’ clay-lined LMSA basin that is 21’ deep (facility 102) with a straw cover  One 340’ x 600’ clay-lined LMSA basin that is 21’ deep (facility 105) with a synthetic cover  One 200’ x 400’ concrete slab used for storage of separated manure solids (facility 106)  One 120’ x 140’ shed with concrete floors for the processing and temporary storage of separated manure solids (facility 108)  One 36’ x 36’ concrete tank that is 12’ deep for temporary liquid manure storage (facility 109)  One 16’ x 32’ concrete tank that is 16’ deep for the temporary storage of parlor wash water (facility 116)  One 80’ x 150’ concrete box that is 11’ deep for the temporary capture of feed pad runoff (facility 121)  One 175’ x 770’ runoff infiltration basin that is 10’ deep for the temporary capture and storage of feed pad runoff (facility 203)

3. The Project would result in a new feedlot of 10,500 AU (10,500 mature dairy cows under 1,000 lbs.).

4. Riverview plans to begin construction in the fall of 2020.

5. Riverview’s actual construction dates are dependent on completion of the environmental review process, issuance of the Minnesota Department of Natural Resources (DNR) Water Appropriation Permit and the State of Minnesota General Animal Feedlot National Pollutant Discharge Elimination System (NPDES) Permit (Feedlot Permit) from the MPCA.

6. The Project will generate approximately 86 million gallons of manure and 15 million gallons of feed pad runoff annually after completion of the Project. Riverview utilizes a screw press to separate the solid manure from the liquid manure. The separated solid manure will be retained by the dairy and used as bedding in the dairy barn free-stalls. Excess solid manure may be sold to nearby dairies for use as bedding. The liquid manure is transferred to area farmers for application to cropland in the fall following harvest.

7. Riverview does not control the land on any of the manure application sites to be used for the Project. The manure recipient controls the land on all manure application sites to be used for the Project.

8. The manure recipient will use a licensed Commercial Animal Waste Technician (CAWT) who will transfer the manure from Riverview’s manure basins to all manure application sites. The CAWT will land apply manure to cropland according to Riverview’s MPCA approved Manure Management Plan (MMP).

9. Riverview has applied for coverage under the Feedlot Permit (MNG441961) on December 26, 2019.

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Procedural History

10. An EAW is a brief document designed to provide the basic facts necessary for the Responsible Governmental Unit (RGU) 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. 4410.0200, subp. 24). The MPCA is the RGU for this Project.

11. Minn. R. 4410.4300, subp. 29(A) requires preparation of an EAW for the Project because it is the construction of an animal feedlot facility with a capacity of 1,000 AUs or more.

12. The MPCA provided public notice of the Project as follows: a. The Environmental Quality Board (EQB) published the notice of availability of the EAW for public comment in the EQB Monitor on August 17, 2020, as required by Minn. R. 4410.1500. b. The EAW was available for review on the MPCA website at: www.pca.state.mn.us/eaw. c. The MPCA provided a news release to media in northern Minnesota, and other interested parties, on August 17, 2020. d. The comment period was to end on September 16, 2020. e. On August 19, 2020, the Minnesota Center for Environmental Advocacy (MCEA) requested that the MPCA extend the comment period for 30 days. f. On August 27, 2020, the MPCA notified Riverview that the MPCA would extend the comment period 30 days to October 16, 2020. g. The Environmental Quality Board (EQB) published the extended notice of availability of the EAW for public comment in the EQB Monitor on August 31, 2020, as required by Minn. R. 4410.1500. h. During the extended comment period the EAW was available for review on the MPCA website at: www.pca.state.mn.us/eaw. i. The MPCA provided a news release to media in northern Minnesota, and other interested parties, on September 1, 2020. j. Riverview’s application for permit coverage under the Feedlot Permit was open for public comment from August 17, 2020, through October 16, 2020.

13. During the 60-day comment period ending on October 16, 2020, on the EAW, the MPCA received one comment from the Minnesota State Historic Preservation Office, two comments from the DNR, and 85 comments from citizens. The MPCA also received late comments; these late comments did not include any new significant information.

14. The list of comments received during the 60-day public comment period are included as Appendix A to these Findings.

15. The MPCA prepared written responses to the comments received during the 60-day public comment period. These responses are included as Appendix B to these Findings.

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Criteria for Determining the Potential for Significant Environmental Effects

16. 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. 4410.1700, subp. 3). The MPCA must order an EIS for projects that have the potential for significant environmental effects (Minn. R. 4410.1700, 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. 4410.1700, subp. 7. These criteria are:

A. Type, extent, and reversibility of environmental effects.

B. Cumulative potential effects. The 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 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 proposer, including other EISs.

The MPCA Findings with Respect to Each of These Criteria Are Set Forth Below

Type, Extent, and Reversibility of Environmental Effects 17. The first criterion that the MPCA must consider when determining if a project has the potential for significant environmental effects is the “type, extent, and reversibility of environmental effects” Minn. R. 4410.1700, subp. 7. A. The MPCA Findings with respect to this criterion are set forth below.

18. The types of impacts that are reasonably expected to occur from the Project include the following:  Surface water and groundwater quality  Groundwater appropriation  Air quality - related to hydrogen sulfide, ammonia, odor emissions, and greenhouse gases (GHGs)

19. With respect to the extent and reversibility of impacts that are reasonably expected to occur from the Project, the MPCA makes the following Findings.

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Surface Water and Groundwater Quality

20. The EAW outlines design, construction, and operational best management practices (BMPs) Riverview will use to comply with the discharge standards of Minn. R. pt. 7020.2003 and the Feedlot Permit, Section 10. This includes the requirement to manage the operation of the facility to contain all contaminated runoff and the direct precipitation up to the volume from a 25 year 24 hour storm event.

21. Minn. R. 7020.2015 and the Feedlot Permit, Section 10, requires that all animals at the feedlot have no direct access to surface waters.

22. Storage of liquid manure is required to be in a structure that meets the design criteria of Minn. R. 7020.2100. Additionally, a professional engineer licensed in the state of Minnesota is required to design and oversee construction of liquid manure storage structures.

23. As required by Minn. R. 7020.2100 a perimeter tile will be installed around the liquid manure storage area in order to protect the liner of the structure from impacts due to water table fluctuation. The perimeter tile system is required to have access for visual observation to ensure the storage system is functioning properly.

24. Storage of solid manure is required to be done in accordance with Minn. R. 7020.2125.

25. Section 4 of the Feedlot Permit requires that Riverview manages all manure in accordance with its MPCA-approved MMP. The MMP describes how manure generated at the feedlot is land applied in a way that maximizes the benefits to cropland, meets all rules and regulations, and protects surface water and groundwater quality.

26. 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. Manure provides valuable organic matter to soil that improves soil tilth, aids in the retention of water and nutrients, and promotes growth of beneficial microorganisms. 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.

27. All intensively farmed cropland in Minnesota receives applications of nutrients to promote crop growth. The addition of nutrients from any source to the environment creates a potential for environmental impacts when that application is not performed responsibly. The MMP for the project requires that nutrients from manure be applied in accordance with the Feedlot Permit and Minn. R. 7020.2225.

28. In order to minimize the potential for nitrate leaching into the groundwater at the manure application sites, manure will be applied at nitrogen based agronomic rates for the type of crop grown. Nitrogen contributions from all sources, including commercial fertilizers, must be accounted for when determining the application rate of manure. The total of nitrogen from all sources cannot exceed the agronomic needs of the crop.

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29. In order to minimize impacts from surface runoff at the manure application sites, all manure application is required to observe setbacks to waters, open tile intakes, sinkholes, mines, quarries, and wells as required in Minn. R. 7020.2225 and the Feedlot Permit. Where a county also has setback requirements, application of manure must follow the most restrictive of the state or county setback requirements.

30. The Feedlot Permit requires transport of manure in a manner to prevent it from leaking or spilling on to public roadways. If manure leakage or spillage does occur, it must be cleaned up and land applied in accordance with Minn. R. 7020.2010 and the Feedlot Permit.

31. Riverview has identified 12,952 acres of cropland available for manure application. Based upon the approved MMP, this is adequate for land application of the manure at agronomic rates.

32. When Riverview transfers ownership of some of its manure to a third-party recipient, the Feedlot Permit requires Riverview, prior to or at the time of manure land application, to provide the manure recipient with the most current manure nutrient analysis. The recipient of the manure must ensure that the agronomic rates of the crop are not exceed by the application of nutrients from manure, including contributions from any other source. Manure must also be applied in accordance with required setbacks and other requirements of Minn. R. 7020.2225. The recipient is also required to keep records of the manure applications, including location, rate, nutrients and nutrients applied. These records are identical to those required to be kept when manure ownership is not transferred.

33. When a CAWT is hired to spread the manure, they must keep records of the quantity and nutrient content of the manure delivered as well as the location and rate of application.

34. Riverview must keep records of manure application activities for the six most recent years. The records must include the amount and nutrient content of manure, location where the manure is applied, and the rate of application.

35. The MPCA finds that, when manure is applied in accordance with the MMP required by the Permit, the amount of nutrients in stormwater runoff from the fields used for manure application will be similar to the existing conditions resulting from nutrient application via commercial fertilizer.

36. The MPCA finds that the measures specified above will prevent or mitigate potential water quality impacts.

37. The MPCA does not reasonably expect significant adverse impacts to water quality, however, if they were to occur, Riverview must modify the operation and management of the Project. The MPCA would require modification of the Feedlot Permit coverage for those items found to cause pollution of waters, including modification of the MMP, for impacts from land application, and the impacts to waters would be reversed.

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 the quality of surface water and groundwater that are reasonably expected to occur from the Project.

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39. The MPCA finds the Project, as proposed, does not have the potential for significant environmental effects based on the type, extent and reversibility of impacts related to surface water and groundwater quality, which are reasonably expected to occur.

Groundwater Appropriation

40. There are currently two water wells at the Project site. The existing two wells were used to conduct an aquifer test. Riverview intends to install a third production well when the Project is being constructed.

41. The Project would use approximately 120 million gallons per year, which is a total consumption of approximately 3.0 billion gallons over 25 years.

42. This level of water use will require Riverview to obtain an individual DNR Water Appropriation Permit for the Project because it is over the DNR’s permitting threshold of 5 million gallons per year.

43. The DNR is the permitting authority for appropriating waters of the state in Minnesota. The DNR Water Appropriations Permit allows for a reasonable use of water if the use does not negatively impact surrounding wells or other water resources.

44. The purpose of the Water Appropriation Permit is to ensure water resources are managed so that adequate supply is available for long-range seasonal requirements for domestic, agricultural, fish and wildlife, recreational, power, navigational, and water quality.

45. Minn. Stat. 103G.265 requires the DNR to manage water resources to ensure an adequate supply to meet long-range seasonal requirements for domestic, agricultural, fish and wildlife, recreational, power, navigation, and quality control purposes. The Water Appropriation Permit Program exists to balance competing management objectives that include both development and protection of Minnesota's water resources.

46. Minn. Stat. § 103G.261 establishes domestic water use as the highest priority of the State’s water when supplies are limited. If a well interference arises, the DNR has a standard procedure for investigating the matter. If the DNR finds a commercial operator is causing interference, the operator must correct it.

47. Unauthorized pumping or use of the well or other water resources is subject to enforcement under Minn. Stat. § 103. Upon completion of an investigation, a permit for water appropriation may be limited, amended, or denied in accordance with applicable laws and rules for the protection of the public interests and the sustainability of Minnesota’s water resources.

48. Due to the DNR oversight and permitting of water appropriations, the MPCA does not expect significant adverse impacts to water appropriation. However, if the DNR determines there is well interference based on concerns or well interference claims, the operator must fix the causes of the interference. Thus, the impacts to water appropriations would then be reversed. The MPCA finds that any water appropriation impacts that may occur from the Project are reversible.

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49. The MPCA finds that the Project, as proposed, does not have the potential for significant environmental effects based on the type, extent, and reversibility of impacts related to water appropriations that are reasonably expected to occur.

Air Quality

50. Riverview conducted air dispersion modeling in November 2019 to estimate the atmospheric concentrations of hydrogen sulfide, ammonia, and the intensity of odorous gases at the Project property lines and nearest neighbors.

51. Riverview’s air modeling used the American Meteorological Society Regulatory Model (AERMOD) developed by the American Meteorological Society and the U.S. Environmental Protection Agency (EPA). The model evaluated the air quality impacts of the Project. AERMOD is a widely accepted air dispersion model, which uses conservative assumptions to predict air quality.

52. Riverview will be utilizing High Density Polyethylene (HDPE) and straw covers on the LMSAs.

Air Quality Related to Hydrogen Sulfide Emissions

Minnesota Ambient Air Quality Standards (MAAQS)

53. The air modeling predicts that the Project will comply with the 30 parts per billion (ppb) hydrogen sulfide MAAQS. Under the hydrogen sulfide MAAQS, the third exceedance of the MAAQS within any 5-day period is a violation. The air modeling demonstrates compliance when the high-third-high hydrogen sulfide concentration (added to background concentration) for any 5-day period at each property-line receptor is less than 30 ppb.

54. The air modeling predicts that the Project emissions alone will result in a maximum property-line hydrogen sulfide concentration of 12.9 ppb. The estimated ambient air concentration for hydrogen sulfide in the Project area is 17 ppb. The total (Project emissions plus existing background) hydrogen sulfide concentration is predicted to be 29.9 ppb at the Project’s property lines.

Sub-Chronic Inhalation Health Risk Value (iHRV)

55. The air modeling predicts that the Project will not exceed the 10 micrograms per cubic meter (μg/m3) subchronic (13-week) hydrogen sulfide iHRV at neighboring residences. iHRVs are concentrations of chemicals emitted to air that are unlikely to pose a significant risk of harmful effects when humans are exposed to those concentrations over a specified period.

56. The air modeling predicts that the Project emissions alone will result in a maximum monthly hydrogen sulfide concentration of 0.13 μg/m3 at the nearest residence. The estimated hydrogen sulfide background concentration in the Project area is 1.0 μg/m3. The predicted total maximum monthly hydrogen sulfide concentration at the neighboring residences is 1.13 μg/m3. Note that while the iHRV is for a 13-week period, AERMOD is not capable of averaging concentrations for that time-period, so a monthly averaging period was used instead. The monthly averaging period is acceptable because it produces a more conservative or protective prediction than the 13-week period.

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57. Based on the air modeling results discussed above, the MPCA finds that hydrogen sulfide emissions expected from the Project do not present the potential for significant environmental effects.

Air Quality Related to Ammonia Emissions

Acute iHRV

58. The air modeling predicts that the Project will not exceed the 3,200 μg/m3 (1-hour) acute ammonia iHRV at the Project’s property-line.

59. The air modeling predicts that the Project emissions alone will result in a maximum hourly property- line ammonia concentration of 1,893 μg/m3. The estimated ammonia background concentration in the Project area is 148 μg/m3. The maximum total (Project emissions plus existing background) property-line ammonia concentration is predicted to be 2,041 μg/m3.

Chronic iHRV

60. The air modeling predicts that the Project will not exceed the 80 μg/m3 (1-year) chronic ammonia iHRV at neighboring residences to the Project site.

61. The air modeling predicts that the Project emissions alone will result in a maximum 1-year time averaged ammonia concentration of 4.2 μg/m3 at the neighboring residences. The estimated ammonia background concentration in the Project area is 5.7 μg/m3. The maximum total (Project emissions plus existing background) ammonia concentration is predicted to be 9.9 μg/m3 at the nearest residences.

62. Based on the air modeling results discussed above, the MPCA finds that ammonia emissions expected from the Project do not present the potential for significant environmental effects.

Air Quality Related to Odor Emissions

63. Although the state of Minnesota has not established ambient air quality standards to regulate odor, Riverview completed air dispersion modeling for odor.

64. The modeled maximum hourly odor intensity, at the Project’s property lines, is 210 odor units per cubic meter (OU/m3) and occurs on the east boundary line. This predicted odor intensity is considered “moderate” as defined by the air modeling report used in the EAW for this Project.

65. The modeled maximum hourly odor intensity, at the nearest residences, is 74 OU/m3. This predicted odor intensity is considered to be “faint.”

66. Riverview has submitted an air emissions and odor management plan to the MPCA with its Feedlot Permit application. The plan includes measures that Riverview will take to minimize the generation of odors from its proposed feedlot and from associated manure application activities. Riverview will use below ground manure storage pits and immediately inject manure into the soil as its manure

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application method to minimize odors. Riverview has also take other measures as listed in item 6.B. of the EAW to further reduce odors.

67. Based on the modeling results discussed above, the MPCA finds that odor at Riverview’s property lines and nearby residences does not present the potential for significant environmental effects.

Air Quality Related to Greenhouse Gas Emissions

68. The MPCA considered greenhouse gas (GHG) emission sources that are within the scope of the Project.

69. The primary GHG emissions from dairy operations are methane (CH4) from manure storage and enteric fermentation, and nitrous oxide (N2O) from manure storage and manure land application.

70. The Project will directly release GHG emissions, which have the ability to widely disperse within the atmosphere and which vary both in terms of their global warming potential and their persistence in the atmosphere.

71. To provide a common unit of measure, the MPCA uses the individual global warming potential of methane and nitrous oxide to convert to carbon dioxide equivalency (CO2e).

72. Using EPA emission factors, the MPCA estimates that after construction, the Project will release approximately 76,106 tons of CO2e annually from enteric fermentation, manure storage, and land application of manure.

73. There are no Minnesota or National Ambient Air Quality Standards for GHGs.

74. At this time, there are no federal or Minnesota thresholds of GHG significance for determining impacts of GHG emissions from an individual project on global climate change.

75. In the absence of a threshold of GHG significance, the MPCA looks to existing regulation. Minn. R. 4410.4300, subp. 15, Part B, establishes a mandatory category requiring preparation of an EAW for stationary source facilities generating 100,000 tons per year (TPY) of GHGs. The purpose of an EAW is to assess environmental effects associated with a proposed project to aid in the determination of whether an EIS is needed. On the premise of GHG emissions, environmental review regulations establish 100,000 TPY as a “trigger” to prepare an EAW to aid in determining potential significant environmental effects. A reasonable conclusion is that the Project’s GHG emissions at well below 100,000 TPY are not considered significant.

76. The EQB is currently engaging in a process to develop guidance for the assessment of GHG emissions in the Minnesota Environmental Review process; this guidance is not yet available for consideration.

Summary of Air Quality Impacts

77. The MPCA expects the Project to meet applicable air quality standards and criteria.

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78. With respect to the reversibility of air quality impacts 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 temporarily or permanently closed.

79. If excessive air emissions or violations of the hydrogen sulfide MAAQS were to occur, or if Riverview exceeded iHRVs for hydrogen sulfide or ammonia, air quality impacts are likely to be correctable. The MPCA could initiate an investigation and require Riverview to make operation and maintenance changes. Therefore, the MPCA finds that any impacts on air quality that may occur from the Project are reversible.

80. The MPCA finds that information presented in the EAW and other information in the environmental review record are adequate to assess the impacts on air quality that are reasonably expected to occur as a result of the Project.

81. The MPCA finds the Project, as 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

82. 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. 4410.1700 subp.7.b. The MPCA Findings with respect to this criterion are set forth below.

83. 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.

84. The EAW addressed the following areas for cumulative potential effects for the proposed Project:  Surface water and groundwater quality  Groundwater appropriation  Air quality

Surface Water and Groundwater Quality

85. The Project and its associated manure application sites are all within four sub-watersheds in Norman County: Mashaug Creek Watershed, Lower Wild Rice River Watershed, Marsh Creek Watershed and Middle Wild Rice River of the Wild Rice River Watershed.

86. The Project and its manure application sites are in areas where the land use is predominantly agricultural.

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87. Mashaug Creek is the closest listed impaired water body to the Project and its manure application site.

88. Mashaug Creek is within the Wild Rice River Watershed. This reach is approximately 1 mile northwest of the Project site. MPCA’s 2018 impaired waters list identifies this reach of the creek as being impaired for aquatic life due to poor benthic macroinvertebrate and fish bioassessments and also for aquatic recreation due to high E. coli.

89. There has not been a Total Maximum Daily Load (TMDL) completed for the Mashaug Creek Watershed yet.

90. Riverview will design and build the feedlot facility as a total confinement operation. This limits the potential for precipitation coming in contact the animals or manure generated at the facility and creating contaminated runoff.

91. All manure is stored within storage structures approved by the MPCA and meet the design requirements of Minn. R. ch. 7020, which limits the potential for impacts to surface or groundwater quality. Riverview is required to examine any LMSA drain tile outlet monthly for water flow and signs of discoloration or odor in any water in the drain tile.

92. Minn. R. 7020.2003 and the Feedlot Permit prohibits discharge of manure, manure contaminated runoff, or process wastewater from the production area to waters of the state except when authorized by the permit as a result of extreme or chronic rainfall events. As a result, the discharge of manure or manure-contaminated runoff to waters of the state from the production area is not reasonably expected to occur.

93. All manure application must occur at agronomic rates and comply with Minn. R. ch. 7020, the Feedlot Permit and county setback requirements, as well as all other applicable federal, state, and local rules, whatever are the more restrictive.

94. Land application of manure from the Project is required to follow the MPCA-approved MMP.

95. If a manure spill occurs, Riverview is required to comply with the Emergency Response Plan developed as part of the permit application process and incorporated into the Feedlot Permit. Minn. Stat. 115.061 and the Feedlot Permit requires that all manure spills be reported to the Minnesota Duty Officer and requires all responsible parties to take immediate action to stop the discharge and recover the material.

96. Proper operation and management of the Project and adherence to appropriate manure land application practices in the MPCA-approved MMPs will limit the potential of manure and/or manure-contaminated stormwater runoff from impacting waters of the state

97. Since the Feedlot Permit and MMPs require preventative measures to protect surface water and groundwater quality, the MPCA does not anticipate the Project will contribute to any potential adverse effect on water quality. Therefore, the MPCA finds that the Project is not expected to contribute significantly to adverse cumulative potential effects on water quality.

12 On the Need for an Environmental Impact Statement Findings of Fact Waukon Dairy Conclusions of Law Waukon Township, Norman County And Order

Groundwater Appropriation

98. There are currently two wells on the Project site. One additional well will be installed for the Project. The two existing wells are registered with the Minnesota Department of Health (MDH). Riverview expects to use approximately 120 million gallons annually, for a total consumption of approximately 3.0 billion gallons over 25-years (i.e., doubling of current water use).

99. The Project will result in a withdrawal of over 5 million gallons per year, and therefore an Individual DNR Water Appropriation Permit will be required for the Project. Riverview has submitted to the DNR, an application for an Individual Water Appropriation Permit for the Project.

100. The DNR has identified safe yield thresholds for the source aquifer and the shallow buried aquifer at the Riverview Waukon Dairy site. The currently available data shows that existing and proposed use would exceed the aquifer’s safe yield.

101. However, Minn. Stat. § 103G.261 establishes domestic water use as the highest priority of the State’s water when supplies are limited. If a well interference arises, the DNR has a standard procedure for investigating the matter. Minn. R. 6115.0740 describes the process for resolving water use conflicts. The rule states that existing and proposed users must develop and submit a plan for proportionate distribution of the available water. The rule requires that DNR approve the plan. If the proposed and existing permittees cannot reach resolution regarding allocation of the available water, the DNR has the authority to develop a new plan, modify the proposed plan, and issue new permits and amend existing permits based on that plan. Options for resolving the conflict include, but are not limited to: modifying existing and proposed appropriations, restricting the timing of withdrawals, and seeking alternative water supplies. The process to resolve a conflict is collaborative, the outcome is uncertain and will take time. The DNR is now facilitating discussions among the existing and proposed users.

102. The DNR and Riverview, LLP have identified specific mitigation measures, subject to DNR’s regulatory authority, that MPCA can reasonably expect to effectively mitigate the cumulative exceedance of the safe yield threshold for the source aquifer and the shallower buried aquifer at the Project site.

Air Quality

103. The MPCA evaluated cumulative potential effects on air quality by comparing the MAAQS for hydrogen sulfide, iHRVs for hydrogen sulfide and ammonia, and odor intensity thresholds with concentrations in the air predicted by air modeling.

104. The modeling analysis included the estimated emissions from the Project, emissions from nearby feedlots, and incorporated conservative background concentrations to account for other possible sources of emissions in the area. Riverview estimated air concentrations for these pollutants at the residences closest to the Project.

105. All modeled air pollutant concentrations for the Project were below the health-based criteria used in the analyses. Therefore, the MPCA finds that cumulative potential effects on air quality will not be

13 On the Need for an Environmental Impact Statement Findings of Fact Waukon Dairy Conclusions of Law Waukon Township, Norman County And Order

significant in the Project area, and the Project will not contribute significantly to adverse cumulative potential effects on air quality.

106. Global climate change results from the total accumulation of GHG emissions in the Earth’s atmosphere, as well as other man-made and natural factors. The GHG composition of the Earth’s atmosphere is changing and causing the planet’s climate to change.

107. While it may be possible to model the effects of the incremental GHG emissions associated with the Project (e.g. a social cost of carbon estimate based on a modeling framework that considers the social cost of each marginal ton of CO2e), as a matter of empirical observation, it would be impossible to ‘see’ the effects signal observationally amidst the internal noise of the global climate system. In other words, the available models might be used, and the results of those models might be extrapolated to give MPCA some idea of physical impacts caused by the amount of GHGs emitted from the Project. However, significant uncertainty would remain, especially as to when and where the physical impacts might occur.

108. It is not within the current state of the science to provide an analysis of the impact that the Project- related GHG emissions will have on the environment.

109. It is impossible to know whether and when reliable data regarding project GHG emissions’ impact on the environment will become available, and any study of cumulative impacts of GHGs would necessarily go well beyond evaluating the impacts solely from the Project.

110. The information on Project impacts that might be developed from any such GHG/climate modeling cannot be reasonably obtained as required for an EAW (Minn. R. 4410.1700, subp. 2a).

111. There are no Minnesota or National Ambient Air Quality Standards for GHGs.

112. The EQB is currently engaging in a process to develop guidance for the assessment of GHG emissions in the Minnesota Environmental Review process; this guidance is not yet available for consideration.

113. The MPCA finds the Project, as proposed, does not have the potential for significant environmental effects related to cumulative potential effects based on the Project’s GHG emissions that are reasonably expected to occur.

Cumulative Effects – Summary

114. Based on information on the Project obtained from air modeling reports and Feedlot Permit application processes, information on water quality and groundwater appropriation presented in the EAW, and consideration of potential effects due to related or anticipated future projects, the MPCA does not expect significant cumulative effects from this Project.

115. The MPCA finds the Project, as proposed, does not have the potential for significant environmental effects related to cumulative potential effects that are reasonably expected to occur.

14 On the Need for an Environmental Impact Statement Findings of Fact Waukon Dairy Conclusions of Law Waukon Township, Norman County And Order

The Extent to Which the Environmental Effects Are Subject to Mitigation by Ongoing Public Regulatory Authority

116. 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. 4410.1700, subp. 7.C. The MPCA Findings with respect to this criterion are set forth below.

117. The following permits or approvals will be required for the Project: Unit of Government Permit or Approval Required MPCA Feedlot Permit DNR Water Appropriation Permit Norman County Conditional Use Permit Septic permit Waukon Township Conditional Use Permit Wild Rice Watershed District Permit Watershed District Permit

118. MPCA Feedlot Permit. The MPCA requires Riverview to obtain a Feedlot Permit for the Project. The Feedlot Permit incorporates construction and operation requirements and includes operating plans that address manure management, emergency response protocols, and odor/air quality management. The attachments are an enforceable condition of the Feedlot Permit.

119. Construction Stormwater. Construction stormwater requirements are incorporated by reference into the Feedlot Permit. Owners of feedlots not seeking Feedlot NPDES Permit coverage are still required to comply with all requirements of the current MPCA construction stormwater general permit but are not required to obtain construction stormwater permit coverage, unless the construction will disturb 5 or more acres.

120. DNR Water Appropriation Permit. There are currently two wells on the Project site. One additional well will be installed for the Project. The two existing wells are registered with the Minnesota Department of Health (MDH). Riverview expects to use approximately 2.5 million gallons of water annually, for a total consumption of 62.5 million gallons over 25 years.

121. State law requires a Water Appropriations Permit for users withdrawing more than 10,000 gallons of water daily, or 1 million gallons annually. Riverview has applied to the DNR for an Individual Water Appropriation Permit.

122. The DNR Water Appropriation Permit ensures the well user manages water resources so adequate supply is available for long-range seasonal requirements for domestic, agriculture, fish and wildlife, recreation, power, navigation, and water quality. State law establishes domestic use as the highest priority when water supplies are limited, and, when well interference occurs, the DNR follows a standardized procedure of investigation.

123. Norman County and Waukon Township Conditional Use Permit. Riverview is required to obtain all required building and conditional use permits required by local units of government to ensure

15 On the Need for an Environmental Impact Statement Findings of Fact Waukon Dairy Conclusions of Law Waukon Township, Norman County And Order

compliance with local ordinances. The Conditional Use Permit will address local zoning, environmental, regulatory, and other requirements needed to avoid adverse effects on adjacent land.

124. Norman County Septic Permit. The Norman County Subsurface Sewage Treatment System Ordinance and local sewage treatment system program regulates the siting, design, installation, alteration, operation, inspection, maintenance, monitoring and management of the subsurface sewage treatment system on all lands in the county except incorporated areas that administer a program by ordinance within their jurisdiction. The construction, installation, modification and operation of a subsurface sewage treatment system requires a permit from the Norman County Environmental Services Department.

125. Wild Rice Watershed District Permit. The District permit requirement is not intended to delay or inhibit development. Rather permits are needed so that the managers are kept informed of planned projects, can advise and in some cases, provide assistance, and can ensure that land disturbing activity and development occurs in an orderly manner and in accordance with the overall plan for the District.

126. 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

127. 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. 4410.1700, subp. 7.D. The MPCA Findings with respect to this criterion are set forth below.

128. Although not exhaustive, the MPCA reviewed the following documents as part of the environmental impact analysis for the proposed Project:  Data presented in the EAW  Feedlot Permit application, with MMPs and attachments  Air Dispersion Modeling Report  Minnesota’s “Final Animal Agriculture Generic Environmental Impact Statement” (2002)  Permits and environmental review of similar projects

129. The MPCA also relies on information provided by Riverview, persons commenting on the EAW, staff experience, and other available information obtained by staff.

130. 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. No elements of the Project pose the potential for significant environmental effects.

16 On the Need for an Environmental Impact Statement Findings of Fact Waukon Dairy Conclusions of Law Waukon Township, Norman County And Order

131. Based on the environmental review, previous environmental studies by public agencies or Riverview, 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.

132. The MPCA adopts the rationale stated in the attached Responses to Comments (Appendix B) as the basis for response to any issues not specifically addressed in these Findings.

CONCLUSIONS OF LAW

133. The MPCA has jurisdiction in determining the need for an EIS for this Project. 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.

134. The MPCA identified areas for potential significant environmental effects. The Project design and permits ensure Riverview will take appropriate mitigation measures to address significant effects. The MPCA expects the Project to comply with all environmental rules, regulations, and standards.

135. Based on a comparison of the impacts that are reasonably expected to occur from the Project with the criteria established in Minn. R. 4410.1700 subp. 7, the Project does not have the potential for significant environmental effects.

136. An EIS is not required for the proposed Waukon Dairy feedlot project.

137. Any Findings that might properly be termed conclusions and any conclusions that might properly be termed Findings are hereby adopted as such.

ORDER

138. The Minnesota Pollution Control Agency determines that there are no potential significant environmental effects reasonably expected to occur from the Waukon Dairy feedlot project and that there is no need for an Environmental Impact Statement.

IT IS SO ORDERED

______Laura Bishop, Commissioner Minnesota Pollution Control Agency

November 18, 2020 ______Date

17 APPENDIX A

Minnesota Pollution Control Agency

Waukon Dairy EAW

LIST OF COMMENT LETTERS RECEIVED

1. Ellen Anderson, Minnesota Center for Environmental Advocacy. Letter received August 19, 2020. 2. Sarah J. Beimers, State Historic Preservation Office. Letter received September 14, 2020. 3. Christine Herwig, Minnesota Department of Natural Resources. Letter received September 16, 2020. 4. Karen Carlsrud, Robert Erickson. Letter received September 16, 2020. 5. Natalie Sudman. Email received October 14, 2020. 6. John Stoltz. Email received October 14, 2020. 7. Peg Furshong. Email received October 14, 2020. 8. Rhyan Schicker. Email received October 14, 2020. 9. Ann Borman. Email received October 14, 2020. 10. Baird Swanson. Email received October 14, 2020. 11. Dean Bredlau. Email received October 14, 2020. 12. Mike Ferguson. Email received October 14, 2020. 13. Heather Moody. Email received October 14, 2020. 14. Frank Bures. Email received October 14, 2020. 15. Dayna Burtness. Email received October 14, 2020. 16. Diana Brainard. Email received October 14, 2020. 17. Ann Turnbull. Email received October 14, 2020. 18. Mike Spry. Email received October 14, 2020. 19. Deborah Dougherty. Email received October 14, 2020. 20. Joel Weisberg. Email received October 14, 2020. 21. Candace Marx. Email received October 14, 2020. 22. Julianna Little. Email received October 14, 2020. 23. Arlene Renshaw. Email received October 14, 2020. 24. Michael Swift. Email received October 14, 2020. 25. Heron Diana. Email received October 14, 2020. 26. Karen Swanson. Email received October 14, 2020. 27. James Mickelson. Email received October 14, 2020. 28. Bruce West. Email received October 14, 2020. 29. S. E. Email received October 14, 2020. 30. Donata DeBruyckere. Email received October 14, 2020. 31. Andy Mattison. Email received October 14, 2020. 32. Mary Polta. Email received October 14, 2020. 33. Bruno Borsari. Email received October 14, 2020. 34. Marguerite Lontz. Email received October 14, 2020. 35. Angela Anderson. Email received October 14, 2020. 36. Catherine Glynn. Email received October 14, 2020. 37. Michael Maleska. Email received October 14, 2020. 38. Rebecca McCartney. Email received October 14, 2020. 39. Tara Ritter, Institute for Agriculture and Trade Policy. Letter received October 14, 2020. APPENDIX A

40. Pam Bartholomew. Email received October 14, 2020. 41. Bonnie Hammack. Email received October 14, 2020. 42. Leo Klisch. Email received October 14, 2020. 43. Elizabeth Olson. Email received October 14, 2020. 44. Pat Schmieder. Email received October 14, 2020. 45. Paul Harris. Email received October 14, 2020. 46. Christopher Loetscher. Email received October 14, 2020. 47. CJ Robinson. Email received October 14, 2020. 48. Angel Permaloff. Email received October 14, 2020. 49. Scott Vizecky. Email received October 14, 2020. 50. Nancy Conger. Email received October 15, 2020. 51. Michael Overend. Email received October 15, 2020. 52. Dean Borgeson. Email received October 15, 2020. 53. Sandy Loney. Email received October 15, 2020. 54. Merry Sawdey. Email received October 15, 2020. 55. Mary Dylkowski. Email received October 15, 2020. 56. Janette Dean. Email received October 15, 2020. 57. Mary Scharf. Email received October 15, 2020. 58. Bonnie Hauge. Email received October 15, 2020. 59. Brenda Berkebile. Email received October 16, 2020. 60. Bruce Larson. Email received October 16, 2020. 61. Tim Ahrens. Email received October 16, 2020. 62. Carrie Redden. Email received October 16, 2020. 63. Andrew Ehrmann. Email received October 16, 2020. 64. Emilio DeGrazia. Email received October 16, 2020. 65. Brian-Paco Bertrand. Email received October 16, 2020. 66. Laura Inman. Email received October 16, 2020. 67. Hannah Bernhardt. Email received October 16, 2020. 68. Susan OBrien. Email received October 16, 2020. 69. Deborah Niebuhr. Email received October 16, 2020. 70. Kay Slama. Email received October 16, 2020. 71. Darwin Dyce. Email received October 16, 2020. 72. Katy Wortel. Email received October 16, 2020. 73. Nancy Carpenter. Email received October 16, 2020. 74. Patrick Byron. Email received October 16, 2020. 75. Ilga Polleitis. Email received October 16, 2020. 76. Steve Jorgenson. Email received October 16, 2020. 77. Michelle Wiltgen. Email received October 16, 2020. 78. Molly Schaus. Email received October 16, 2020. 79. Sara Brice. Email received October 16, 2020. 80. Joy Anderson, Minnesota Center for Environmental Advocacy. Letter received October 16, 2020. 81. Sylvia Luetmer. Email received October 16, 2020. 82. Nathan Kestner, Minnesota Department of Natural Resources. Letter received October 16, 2020. 83. Julia Kloehn. Email received October 16, 2020. 84. Jim Paulson. Email received October 16, 2020. 85. Brady Janzen. Riverview LLP. Letter received October 16, 2020. 86. Sarah Sander. Email received October 16, 2020. 87. Laura Frerichs. Email received October 16, 2020. 88. Vincent Ready. Email received October 16, 2020. 1

Charles Peterson August 19, 2020 Project Manager Minnesota Pollution Control Agency VIA E-MAIL ONLY 520 Lafayette Road North St. Paul, MN 55155 [email protected]

Dan R. Card Molly Costin Supervisor Senior Pollution Control Specialist Environmental Review Unit West Feedlot Unit Minnesota Pollution Control Agency Minnesota Pollution Control Agency 520 Lafayette Road North 714 Lake Ave., Suite 220 St. Paul, MN 55155 Detroit Lakes, MN 56501 [email protected] [email protected]

Re: Riverview, LLP Waukon Dairy Project EAW and NPDES/SDS General Permit

Dear Staff:

The Minnesota Center for Environmental Advocacy (“MCEA”) is writing to request an extension of the comment period for the Environmental Assessment Worksheet (“EAW”) and feedlot permit referenced above. The extension is necessary to allow MCEA and other interested parties to obtain and review data related to this large proposed dairy operation, which will be among the largest in the state.

A number of issues require additional time. First, based on the aquifer results, DNR has concluded that long-term pumping of the source aquifer will cause unsustainable water levels reductions in the shallower buried aquifer. This has the potential for domestic well interference and water use conflict. In order to understand the significance of this finding, additional data is needed. Second, while the EAW briefly describes the project’s greenhouse gas impacts, more information is needed. For example, the EAW describes an aboveground petroleum tank that will be used to power various pieces of equipment and vehicles. However, no information is provided on emissions. Third, the Project will dispose of excess water in its basins by tile to Norman County Ditch No. 7, which flows to the impaired Wild Rice River. Additional time is needed to comment on impacts from this aspect of the Project. Finally, more information is needed to assess how the Project will manage its manure given its large volume and the short window that will be available in the Fall for application. Questions are also raised by the EAW’s reference to 2001 agronomic recommendations from the University of Minnesota. As proposed, this Project would be one of, if not the largest CAFOs in Minnesota, which warrants extra time for the public to review the proposal and ensure there is no significant environmental impact. August 19, 2020 Page 2 MCEA also notes that, based on public information, the Waukon Township Board may have prematurely approved a Conditional Use Permit for Riverview Dairy in December 2019. MCEA assumes that this action will be rescinded because it preceded the completion of environmental review.

In order to allow MCEA and others to comment on this project and its proposed permit, a thirty (30) day extension is needed so that data related to the project can be obtained and reviewed.

Kind regards,

Ellen Anderson Climate Program Director Minnesota Center for Environmental Advocacy [email protected]

EA/el

September 14, 2020

Charles Peterson Planner Principal Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, MN 55155

RE: EAW – Waukon Dairy Construction of a 10,500 animal unit Jersey dairy feedlot T145 R43 S32 NE, Waukon Twp, Norman County SHPO Number: 2020-2511

Dear Mr. Peterson:

Thank you for providing this office with a copy of the Environmental Assessment Worksheet (EAW) for the above-referenced project.

Based on our review of the project information, we conclude 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 that will be affected by this project.

Please note that this comment letter does not address the requirements of Section 106 of the National Historic Preservation Act of 1966 and 36 CFR § 800. If this project is considered for federal financial assistance, or requires a federal permit or license, then review and consultation with our office will need to be initiated by the lead federal agency. Be advised that comments and recommendations provided by our office for this state-level review may differ from findings and determinations made by the federal agency as part of review and consultation under Section 106.

Please contact Kelly Gragg-Johnson, Environmental Review Specialist, at [email protected] if you have any questions regarding our review of this project.

Sincerely,

Sarah J. Beimers Environmental Review Program Manager

MINNESOTA STATE HISTORIC PRESERVATION OFFICE 50 Sherburne Avenue ▪ Administration Building 203 ▪ Saint Paul, Minnesota 55155 ▪ 651-201-3287 mn.gov/admin/shpo ▪ [email protected] AN EQUAL OPPORTUNITY AND SERVICE PROVIDER 3

Ecological and Water Resources 2115 Birchmont Beach Rd NE Bemidji, MN 56601 September 15, 2020

Charles Peterson MPCA Project Manager 520 Lafayette Road North St. Paul, MN 55155

EAW, Waukon Dairy, Norman County

Mr. Peterson,

Thank you for the opportunity to review the Waukon Dairy Environmental Assessment Worksheet (EAW). The Minnesota Department of Natural Resources (DNR) has completed a review of the EAW and offers the following comments:

Groundwater Quantity and Appropriation

DNR has received a permit application for appropriation from Waukon Dairy. An aquifer test was required as part of the permit process to determine aquifer sustainability at this site. Generally, DNR has concerns over the long‐term sustainability of the aquifer. We also have concerns for potential water use conflicts. The aquifer test has been conducted, however the analysis of data and conclusions have not been formalized. Without further information, we cannot comment to the full extent of impacts at this time.

We will continue to work with the applicant on water appropriation permitting within our authority under MN Rule 6115. We recommend the applicant work closely with resource agencies to assess water appropriation impacts, implement a water conservation plan, and consider water‐use innovations such as roof‐top rainwater harvesting.

As Minnesota Pollution Control moves forward with the feedlot permitting process, please continue to coordinate closely with Groundwater Appropriation Hydrologist Josh Prososki at [email protected]. Groundwater and Surface Water Quality

The Minnesota Groundwater Protection Rule may not apply to manure application; however, DNR advocates that all requirements of the Groundwater Protection Rule be followed on all manure application sites. Minimizing nitrates from entering surface and groundwater through simple best management practices benefits Minnesota’s most valuable resource for people and wildlife: water.

Wildlife and People

To minimize visual, noise, and odor impacts to nearby neighbors, DNR recommends coordinating with the local Soil and Water Conservation District to plant a coniferous shelterbelt surrounding the proposed dairy.

Thank you for your time and consideration of these comments.

Sincerely,

Christine Herwig

Assistant Regional Manager Ecological and Water Resources

CC: Jennifer Rose, Groundwater Specialist Josh Prososki, Groundwater Appropriation Hydrologist Jaime Thibodeaux, Environmental Assessment Ecologist

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-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 8:23 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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______

Dear Mr. Peterson:

My name is Natalie. I live in Montgomery, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Allowing Riverview to consolidate huge portions of the dairy market in Minnesota not only robs small to mid-sized dairy farming families of their livelihood, it erodes one of the best solutions that we have to environmental issues by taking more small farmers off the land. In the face of flooding, drought, and extreme storms, farmers are ready to drive solutions in agriculture through regenerative practices that build resilient soil, sequester carbon, and get animals back on the land where they belong.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Natalie Sudman 33628 143rd Ln Montgomery, MN 56069-4307 6

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 8:26 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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______

Dear Mr. Peterson:

Hello,

I'm writing to request that a full EIS be completed for the proposed Riverview dairy operation. "Farms" of this magnitude place a large burden of water, soil, and air pollution on the rural communities of our state.

Sincerely,

John Stoltz 2990 Elm Rd Barnum, MN 55707-8718 7

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 8:29 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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______

Dear Mr. Peterson:

My name is Peg. I live in Sacred Heart, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Additionally, Riverview should have to pay for the water that they are using. They use millions of gallons of water for free impacting the aquifer and the fragility of our fresh drinking water supply for corporate enterprise. Then there is the matter of the disposal of the manure that one more CAFO brings to the watershed. At what point does the land become saturated to the point of contamination? The fall of 2019 saw the highest levels of E.coli in the Minnesota River Basin. Enough is enough!!!

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Peg Furshong 81307 150th Street Sacred Heart, MN 56285-1177 8

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 8:29 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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______

Dear Mr. Peterson:

My name is Rhyan. I live in madison, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Right now, an immense amount of market consolidation is happening in the dairy industry, and it's kicking the last few small to mid-sized dairy farmers off the land. When our neighbors who raise dairy cows are struggling to make a profit -- even going so far as dumping milk to bring down oversupply -- one operation adding 10,500 dairy cattle to the market is unacceptable. What are we telling our small dairy farmers when we watch their demise and then support a large dairy coming in from outside the community and profiting in their place?

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Rhyan Schicker 721 4th ave Madison, MN 56256-1437 9

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 8:31 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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______

Dear Mr. Peterson:

My name is Ann. I live in Morris, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

As you must be well aware, we are in the midst of a global climate crisis. Indeed, as LSP states, we must pivot AWAY from factory farming and move aggressively to support small farms that focus on food supply, agility, and diversified products. Factory farms are not "inevitable," as Riverview would have us believe. Riverview produces great wealth to the corporation that runs it, while costing our communities far too much in lost livelihoods and endangering water supplies.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Ann Borman 403 E 3rd St Morris, MN 56267-1425 10

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 8:38 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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______

Dear Mr. Peterson:

My name is Baird. I live in Pine Island, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion. EIS isn't just a good idea, it is the only way we can be sure that the area around the proposed expansion can support it without degrading the air, water and livability for the life, including people, surrounding it. The costs of an enterprise for profit should not have to be borne by other people, especially loss of air and water quality.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Baird Swanson 310 1st Ave SW, PO Box 981 Pine Island, MN 55963-0981 11

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 8:39 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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______

Dear Mr. Peterson:

My name is Dean. I live in Zumbrota, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Dean Bredlau 45179 Nygren Road Zumbrota, MN 55992-5111 12

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 8:40 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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______

Dear Mr. Peterson:

My name is Mike. I live in Kasota, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Mike Ferguson 110 Mill St N Kasota, MN 56050 13

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 8:47 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Heather. I live in Winona, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

The dairy industry in Minensota, and across the US, is struggling. All the local and small to mid sized farms are being snuffed out by larger companies. Why should a massive 10,000 cow operation be allowed when our small farmers are struggling to make a profit right now?

Small and mid-sized farms are the future of our country. They keep the economy localized, provide fresher foods, and are better for the environment. Riverview should not be allowed to take up so much space on the market and push our local farmers out.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Heather Moody 1063 w 5th st APT A Winona, MN 55987-6497 14

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 8:51 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Frank. I live in Winona, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Frank Bures 224 Lake Park Dr. Winona, MN 55987-3898 15

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 8:53 AM To: Peterson, Charles V (MPCA) Subject: EIS needed for Riverview Expansion

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Dear Mr. Peterson:

My name is Dayna Burtness. I'm a hog farmer in Spring Grove, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Dayna Burtness 23970 County 19 Spring Grove, MN 55974-1281 16

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 9:00 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Diana. I live in Duluth, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Besides being a danger to our water and soil, the factory farm model is unhealthy and cruel to the animals and farm workers. It's likely that our next pandemic will come out of a factory farm where the animals are unnaturally packed together. This risk needs to be included in the EIS.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Diana Brainard 4544 Sunset View Drive Duluth, MN 55803-8329 17

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 9:12 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Ann Turnbull, I live in Brainerd, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

I am against increasing the power of corporations which in turn eliminates the ability of small farmers to operate and earn a living. Corporate farming increases the impact of global warming which in turn affects the quality of life in our communities. We at least can work with local farmers who share the concerns we all have for the quality of our lives. It has been shown time and time again that large corporate farming does not consider their effect on neighbors' lives.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Ann Turnbull 16196 Eagle Bluff Dr Brainerd, MN 56401-5629 18

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 9:13 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Mike. I live in Nevis, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Mike Spry 22705 Deep Woods Ln Nevis, MN 56467 19

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 9:17 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Deborah. I live in Finlayson, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

I believe it only makes sense to support small to midsize farm operations. If we want to positively effect families health and finances, the environment and the food produced, we must consider how that can be done.

The oversized agriculture operations do not seem to be the answer. The negative environmental effects are unacceptable when carefully considered. This model makes it nearly impossible for smaller farms to thrive.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Deborah Dougherty 14929 Dahlstein Rd Finlayson, MN 55735-4445 20

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 9:37 AM To: Peterson, Charles V (MPCA) Subject: Riverview's Proposed Waukon Dairy Extension Needs to Have an EIS

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Dear Mr. Peterson:

My name is Joel Weisberg. I live in Northfield, MN and I am writing to you because I believe a full Envoronmental Impact Study must be performed on the proposed Waukon Dairy Riverview expansion. This expansion would add over ten thousand dairy cattle and would have major environmental consequences, as it is clear that the concentration of large numbers of animals in one place makes it very difficult to responsibly deal with their waste.

Further it will help to drive smaller operations, which tend to be more responsible with their environmental stewardship, out of business.

All of this argues that a full EIS is needed in order to determine the environmental consequences of the proposed expansion before proceeding.

Thank you.

Sincerely,

Joel Weisberg 105 Winona St Northfield, MN 55057-2232 21

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 9:39 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Candace. I live in Mazeppa, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Candace Marx 47323 County 11 Blvd Mazeppa, MN 55956 22

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 9:40 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Julianna. I live in Harmony, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Julianna Little 16108 305th Ave Harmony, MN 55939-2600 23

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 9:43 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Arlene. I live in Mankato, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Our small to mid-size farm owners have demonstrated that they are far more sensitive to environmental issues, which is crucial in today's world. Corporate farms, on the other hand, are committed to making as much profit as possible by whatever means. Their track record with issues of air, water and soil pollution is dismal. I am particularly concerned about pollution to our water systems, including ground water. The number of animal units that this proposal represents will surely pose difficulty, and corporate entities are notorious for not taking responsibility for the harm they cause. As to the air pollution, ask the neighbors down wind how they feel about that!

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Arlene Renshaw 216 Locke St. Mankato, MN 56001-3901 24

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 9:57 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Michael. I live in Northfield, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

As an aquatic ecologist, I am opposed to increasing the size of this dairy operation in the karst region of Minnesota. The waste stream of a dairy operation of this size is enormous, and its effects on local streams and aquifers, even after some level of "treatment" will cause enormous damage to these aquatic resources. Of course it is possible to completely contain the waste products of a dairy operation as large as this expansion will be. However to do so would be very expensive, even if it was coupled with an anaerobic digestion system generating methane which could be used by the dairy and/or sold to the gas market. It is incombent on the MPCA to protect Minnesota's aquatic resources. If the waste stream from the proposed dairy expansion cannot be completely retained on site, this proposal should be rejected!

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Michael Swift 206 Madison St S Northfield, MN 55057-1633 25

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 10:11 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Heron. I live north of the Twin Cities in Taylors Falls, MN - a county with lots of farmers. My grandfather was DNR Commissioner for many years and I loved to go around with him when he visited farmers. They always ended up in a discussion about how to best take care of natural resources.

It is not the large farms that will be able to take care of the beautiful natural resources we have in Minnesota, it is the smaller farmers who must put up with the negative impacts of not properly tending to the land. In a small community, neighbors really matter, whether it's helping to put out a house or grass fire while you're waiting the half hour for the fire truck to come, or whether you need hand with a birthing cow. Or, whether your farming practices are tainting the water and air in your local community.

I am writing because I believe there is wisdom in reviewing any large expansion in any type of husbandry. Your wisdom in this type of EIS review will go down favorably with local farmers and townspeople.

Minnesota non-indigenous settlers were based in cooperatives - it shaped our state's constitution. Did you know there are more co-ops in Minnesota than any other state? And farmers were in the lead in this ongoing project of working together. In the 162 years Minnesota has been a state, we have worked our way through many struggles, trying to balance business needs with individual and community needs. In the plea for fairness, please allow and Environmental Impact Statement on this proposed dairy expansion.

Thank you. And please, be safe and stay healthy.

Sincerely,

Heron Diana 35743 Tern Avenue Taylors Falls, MN 55084-2807 26

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 10:22 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Karen. I live in Lanesboro, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Karen Swanson PO Box 16 Lanesboro, MN 55949 27

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 10:37 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is James. I live in Rochester, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

James Mickelson 4817 75th ST SE Rochester, MN 55904-7116 28

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 10:39 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Bruce. I live in Dilworth, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Bruce West 508 2nd Street NE Dilworth, MN 56529 29

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 10:50 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is S. I live in Faribault, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Allowing this to go through is unacceptable. Both for our small farmers and our communities and for the environment. Is this what you want to pass on yo your children??

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

S E 868 4th Faribault, MN 55021-6124 30

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 10:53 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Donata. I live in Minneota, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Donata DeBruyckere 401 East third St. Apt. D Minneota, MN 56264-9611 31

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 10:58 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Andy Mattison. I live Princeton, MN on an old dairy farm that was forced out of buisness during the last dairy farm crisis that took place in the 1980s. I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion, with special consideration taken on how many small farms will be forced out of business by this expansion.

Back in the 80s, (as is happening again now) over 350 dairy farmers went out of buisness in the Princeton (Mille Lacs County) area alone, due to the same issues that are pushing dairy farmers out again now. If you travel around this area today you can still see the affects of all those people being forced out of buisness, and some of the lengths they turned to to make up for the lost income. And the communities around the area have suffered from it in many ways. A giant factory operation like Riverview is proposing will cause the same thing to happen in that area. But to allow it to move forward without even requiring an EIS is ludicrous. No entity large or small should be able to install operations that have the potential to affect so many other people and resources without an EIS. Please require an EIS before Riverview's proposed expansion is allowed to move forward.

Thank you for your time and consideration.

Sincerely,

Andy Mattison 14547 Apple Rd. Princeton, MN 55371-6311 32

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 11:16 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Mary. I live in New Ulm, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Mary Polta 1610 Sunset Ave Apt 121 New Ulm, MN 56073-2085 33

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 11:23 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Bruno. I live in Winona, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Bruno Borsari 260 Liberty Street Winona, MN 55987 34

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 11:28 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Marguerite . I live in Rockford , MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Marguerite Lontz 7565 Woodland Trl Rockford, MN 55373-8413 35

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 11:33 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Angela. I live in Stillwater, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

These expansions cannot go on. They are destroying the land and small farmers. Please require an EIS in this precedence setting case.

Hope you stay safe and healthy.

Sincerely,

Angela Anderson 1121 4th St. N Stillwater, MN 55082-4358 36

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 11:46 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Catherine. I live in Lanesboro, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Our neighbors who raise dairy cows are struggling to make a profit -- they are even going so far as dumping milk to bring down oversupply -- one operation adding 10,500 dairy cattle to the market is absolutely unacceptable. This market consolidation is happening all throughout the dairy industry, and it's kicking the last few small to mid-sized dairy farmers and our beloved neighbors off the land.

This type of consolidation is robbing small to mid-sized dairy farming families of their livelihood, and it's eroding one of the best solutions that we have to environmental issues by taking them off the land. In the face of flooding, drought, and extreme storms, farmers are ready to drive solutions in agriculture through regenerative practices that build resilient soil, sequester carbon, and get animals back on the land where they belong.

Please, Mr. Peterson, I implore you to take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

May you stay safe and healthy,

Sincerely,

Catherine Glynn 111 Kenilworth Avenue N., PO Box 166 Lanesboro, MN 55949-0166 37

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 12:10 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Michael. I live in HIBBING, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Michael Maleska 12761 SMITH RD Hibbing, MN 55746-8525 38

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 12:24 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Rebecca. I live in Northfield, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Rebecca McCartney 519 College St Northfield, MN 55057 39

From: Tara Ritter Sent: Wednesday, October 14, 2020 12:48 PM To: Peterson, Charles V (MPCA) ; Costin, Molly (MPCA) Cc: Cecelia Heffron ; Ben Lilliston Subject: IATP Comments on Waukon Dairy

Hello Charles and Molly,

Attached are the Institute for Agriculture and Trade Policy’s comments on the proposed Waukon Dairy EAW. Please let us know if you need anything further from us. Thank you,

Tara Ritter Senior Program Associate 218-831-0763 Institute for Agriculture and Trade Policy www.iatp.org

Institute for Agriculture and Trade Policy Comments on the Environmental Assessment Worksheet for Waukon Dairy

The Institute for Agriculture and Trade Policy (IATP) thanks the Minnesota Pollution Control Agency (MPCA) for the opportunity to comment on the Environmental Assessment Worksheet (EAW) for Riverview’s proposed Waukon Dairy in Norman County.

IATP is a 33-year-old organization based in Minneapolis. We work at the local, state, national and international levels to create fair and sustainable agriculture and trade systems. IATP was born in response to the family farm crisis of the 1980s, and we continue to pursue policy solutions that benefit family farmers, rural communities and the environment. Minnesota, as one of the largest agricultural states in the country, has a critical role to play in setting a precedent for how state governments respond to the climate crisis.

We envision an animal agriculture system that keeps small and mid-sized farmers on the land, sequesters carbon and protects water quality. However, agricultural consolidation has pushed dairy farmers off the land,1 resulting in mega-farms that concentrate profits in the hands of the few, emit potent greenhouse gases (GHGs) methane and nitrous oxide and contaminate waterways. Minnesota has an imperative to create an environment conducive to small and mid-sized dairy farmers raising animals in ways that protect the water and the planet.

The EAW for the proposed Waukon Dairy does not fully capture the operation’s environmental effects and underestimates its climate impacts. It also does not consider the damaging impact of agricultural consolidation on the farm economy and rural communities or adequately evaluate more climate-friendly methods of animal agriculture that also make farms more resilient to climate impacts. Furthermore, a large hog operation (Barrick Farms) is being started in Norman County at the same time, and the combined environmental impact of these operations on water and the climate is not considered. These oversights make it impossible for MPCA to determine the significance of environmental effects fairly. We strongly urge MPCA to require an Environmental Impact Statement (EIS) for Waukon Dairy to measure fully its environmental impacts and outline alternatives.

Waukon Dairy Violates MEPA The Minnesota Environmental Policy Act (MEPA) states that an EIS is triggered if a proposed project has the potential for significant environmental impact. In 2007, the U.S. Supreme Court found that GHGs are air pollutants covered by the Clean Air Act and that they threaten the public health and welfare of current and future generations.2 In 2019, Minnesota Governor Tim Walz called climate change an “existential threat” that “put[s] our communities and environment at risk.”3

1 James MacDonald, Robert Hoppe, and Doris Newton, Three Decades of Consolidation in U.S. Agriculture, (USDA Economic Research Service, March 2018). 2 Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Section 202(a) of the Clean Air Act, (US Environmental Protection Agency, 2017). 3 Tim Walz, Establishing the Climate Change Subcabinet and the Governor’s Advisory Council on Climate Change to Promote Coordinated Climate Change Mitigation and Resilience Strategies in the State of Minnesota, (State of Minnesota, December 2019).

The U.S. Environmental Protection Agency (EPA) has expressly acknowledged that the expansion of confinement and liquid-based manure systems has caused methane emissions to increase significantly in recent decades. EPA noted that the “manure management systems with the most substantial methane emissions are those associated with confined animal management operations where manure is handled in liquid-based systems.”4 Consequently, as animal agriculture, including dairying, becomes increasingly more industrialized and concentrated, methane emissions will also increase, leading to more adverse climate change impacts.

According to the EAW, Waukon Dairy would lead to a substantial increase in GHG emissions of at least 76,106 metric tons of carbon dioxide equivalent each year — if not more (see measurement section of this comment). This is a significant environmental impact and should trigger an EIS.

Waukon Dairy Runs Counter to Minnesota’s Next Generation Energy Act Minnesota’s Next Generation Energy Act requires the state to reduce GHGs by 80% between 2005 and 2050. According to a 2019 report by MPCA, agriculture accounts for approximately one-quarter of Minnesota’s GHG emissions. The report goes on to say that “strategies to reduce emissions from this sector are critical to reaching statewide goals.”5

Minnesota missed the Next Generation Energy Act’s goal of a 15% reduction by 2015, signaling that strong and additional efforts are needed to reduce Minnesota’s GHG emissions. Minnesota’s overall emissions did decline 12% relative to 2005 levels by 2016, but emissions from crop agriculture increased by approximately 12% and methane emissions from animal agriculture increased by approximately 8% during that same time period.6 Since agriculture is an area where emissions are going up, it’s an obvious sector to target for emissions reduction efforts. Yet, this project would add to the rising emissions within this sector.

The Waukon Dairy EAW ignores these facts. It says, “Annual GHG emissions fluctuate, but fortunately, Minnesota has been on a general downward trend since 2005… The most recently available data (2016) shows the state’s total annual GHG emissions at 12% below the 2005 baseline.” These numbers look at overall emissions and ignore the fact that emissions from agriculture have increased.

Minnesota’s climate goals are critical in the collective effort to combat climate change, yet the EAW only frames Waukon Dairy’s emissions in terms of global impact and ignores Minnesota’s goals. The EAW says, “It is difficult to translate the Project’s incremental contribution to global GHGs and its effects on climate change globally or regionally.” It goes on to say, “In other words, while agriculture contributes to climate change generally, existing scientific tools do not allow MPCA to quantify the specific effects of a particular feedlot or project on global or regional climate change impacts.”

Global climate change impacts are a result of cumulative actions across the world. No single project can have a measurable global impact. Even constructing brand new coal-fired power plants throughout Minnesota wouldn’t register on a global scale. Instead, MPCA’s job is to measure progress against Minnesota’s climate goals, namely the Next Generation Energy Act, not against overall global GHG emissions.

4 Inventory of U.S. Greenhouse Gas Emissions and Sinks, (US Environmental Protection Agency, 2020). 5 Peter Cibrowski, Greenhouse Gas Reduction Potential of Agricultural Best Management Practices, (Executive Summary, October 2019). 6 Anne Claflin & Fawkes Steinwand, Greenhouse Gas Emissions in Minnesota: 1990-2016, (January 2019).

This guidance on considering GHG emissions in environmental reviews has already been provided at the federal level through the Council on Environmental Quality (CEQ). The CEQ’s guidance is for the National Environmental Policy Act (NEPA), but interpretations of NEPA’s requirements can be used to understand how to implement MEPA.7 The CEQ said, “A statement that emissions from a proposed Federal action represent only a small fraction of global emissions is essentially a statement about the nature of the climate change challenge, and is not an appropriate basis for deciding whether or to what extent to consider climate change impacts under NEPA.”8 This standard should be applied to the Waukon Dairy EAW as well; though Waukon Dairy will not significantly impact global GHG emissions, it will significantly hinder Minnesota’s ability to meet its goal of GHG reductions across all sectors.

Comments on Measurement In the Waukon Dairy EAW, it acknowledges that “Minnesota Environmental Quality Board guidance is not currently available” to determine which project-related activities should count in a GHG analysis. While this is true, the EQB process to integrate climate change into Environmental Review could take multiple years. Until then, the MPCA must use a rigorous accounting methodology to determine the life-cycle climate impact of proposed feedlots.

The EAW also says, “The information the MPCA would need to conduct a full GHG life-cycle analysis are not readily available.” MPCA can and must find tools to conduct a life-cycle analysis for Waukon Dairy and other proposed feedlots. An article in the Journal of Dairy Science lists many tools to estimate GHG emissions from dairy farms. These tools are described in the table below:9

Model Description

Emission factor-based carbon calculator that determines a carbon footprint AgRE Calc of various types of farms, including dairy. (http://www. agrecalc.com) Emission factor and process model primarily for estimating carbon sequestration and emissions of various types of farms, including dairy. COMET-Farm (http://cometfarm.nrel.colostate.edu/) Emission factor-based carbon accounting tool for a wide range of cropping systems and includes a dairy livestock component. (https:// Cool Farm Tool coolfarmtool.org/) Emission factor and process simulation tool that estimates GHG, NH3, and other gaseous emissions and the carbon footprint of dairy production systems. (https://www.ars.usda.gov/northeast- DairyGEM area/uppa/pswmru/docs/dairy-gas-emissions-model/)

7 See In re N.D. Pipeline Co. LLC, 869 N.W.2d 693, 698 (Minn. App. 2015) (Minnesota courts may look to federal courts’ interpretation of NEPA when applying MEPA). 8 Council on Environmental Quality, Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews (August 2016). 9 C. Alan Rotz, Symposium review: Modeling greenhouse gas emissions from dairy farms, (Journal of Dairy Science, July 2018).

Biophysical process simulation of pastoral dairy systems predicting GHG dynamics including direct and indirect emissions and soil carbon balance. DairyMod (http://imj.com.au/dairymod/) An empirical model that simulates the technical, environmental and financial processes on a dairy farm that includes nitrogen and phosphorus cycling and DairyWise losses, GHG emissions and energy use. Process-related emission factors represent carbon and nitrogen flows on arable and livestock farms quantifying GHG, soil C sequestration and N losses FarmAC to the environment. (http://www.farmac.dk/)

Process simulation used to evaluate consequences of changes in regulations, management, prices and subsidies on farm production, profitability, nitrogen FASSET losses, energy consumption and GHG emissions. (http://www.fasset.dk/) Process-based emission factors estimate all important direct and indirect sources of GHG emissions of livestock operations. (http:// www.agr.gc.ca/eng/science-and-innovation/results-of- Holos agriculturalresearch/holos/?id=1349181297838) Process simulation of all-important farm components representing the performance, economics and environmental impacts, including direct and indirect GHG emissions and carbon footprint. (https://www.ars. usda.gov/northeast-area/up-pa/pswmru/docs/integrated-farm- IFSM systemmodel/) Simulation of soil and manure biogeochemical processes producing GHG and ManureDNDC NH3 emissions. (http://www.dndc.sr.unh.edu/)

Dynamic simulation of the flows of carbon, nitrogen, phosphorus, copper, MELODIE zinc and water within animal, pasture, crop and manure components. Process simulation of the effects of management, climate and soil properties on nitrogen, phosphorus and carbon losses along with profitability, SIMS(Dairy) biodiversity, soil quality and animal welfare.

Scientific literature outlines the necessity of using a life-cycle analysis to provide a valid comparison of different livestock production systems.10 In one evaluation of GHG emissions from the national supply chain of milk, 72% of the emissions occurred in processes prior to the milk leaving the farm.11 Without performing a life-cycle analysis of Waukon Dairy’s GHG emissions, the review will be incomplete and inherently flawed.

10 Tara Garnett, Livestock-related Greenhouse Gas Emissions: Impacts and Options for Policy Makers, (Environmental Science Policy, 2009). 11 C. Alan Rotz, Symposium review: Modeling greenhouse gas emissions from dairy farms, (Journal of Dairy Science, July 2018).

There is extensive guidance on what should be included in a life-cycle analysis of a livestock operation. According to a recent report,12 some of these factors include:

• Enteric fermentation • Manure storage • Embodied energy in fertilizers and pesticides for growing grain • Energy use for heating, cooling and ventilation • Soil organic carbon balance in pasture versus cropland for feed grains • Nitrous oxide emissions from fertilized fields versus pasture • GHG impacts of manure overapplication to surrounding acreages

MPCA chose to quantify emissions from only enteric fermentation, manure storage and manure land application because “these are the sources the MPCA uses to estimate GHG emissions for the entire agricultural sector on a statewide basis, and the EPA provides emission factors for these sources.” However, there are many tools available, such as those listed in the table above, to more fully estimate the impacts of this project.

Of the emissions that MPCA did choose to quantify, the EAW’s estimate for nitrous oxide emissions from manure land application is likely far too low. In many livestock-producing regions of the U.S., the amount of waste produced exceeds the capacity of the surrounding land to absorb it for plant production.13 14 Analyses of GHG emissions from livestock systems often assume waste application rates consistent with Natural Resources Conservation Service (NRCS) nutrient management criteria, yet farmers often exceed these guidelines. According to the EPA, heavy manure applications can result in substantial nitrous oxide emissions.15 As a result, GHG emissions from larger confinement operations are often underestimated.

This is likely to be true for Waukon Dairy. The EAW states that Waukon Dairy “does not own or operate any of the manure application sites” and will transfer manure to apply on approximately 12,952 acres. They have agreements with the owners of the other sites to accept manure from the project, but there’s no oversight of those acres and only vague wording in the EAW about when the manure would be applied. Without oversight, there’s no way to know whether manure is being over-applied, which would cause the project to be responsible for significant uncounted nitrous oxide emissions.

The EAW admits that “GHG emissions are not calculated for electricity generation that is required to operate lighting, heating, milk pumping equipment, etc. Also not included are GHG emissions from fuel combustion required to deliver feed, animals, and milk, and to operate farm equipment used in growing feed, processing feed, and applying manure.” Constructing barns, milking parlors and other infrastructure to accommodate 10,500 animal units will vastly increase Waukon Dairy’s electricity consumption, yet that’s left out of MPCA’s analysis. In addition, the EAW says that the project “expects an average of 269 vehicles per week” during operation. The emissions from this increased traffic must be accounted for. Emissions from these processes

12 National Sustainable Agriculture Coalition, Agriculture and Climate Change: Policy Imperatives and Opportunities to Help Producers Meet the Challenge, (Washington DC, 2019). 13 U.N. Food and Agriculture Organization, Livestock’s long shadow: Environmental issues and options, (2006). 14 Peter Thorne, Environmental health impacts of concentrated animal feeding operations: anticipating hazards – searching for solutions, (Environmental Health Perspectives, 2006). 15 Inventory of U.S. Greenhouse Gas Emissions and Sinks, (US Environmental Protection Agency, 2020).

are a critical part of any life-cycle analysis, and the omission of energy and fuel use gives Waukon Dairy the appearance of having a much smaller GHG footprint than it really does.

Other sources of emissions that the EAW does not count are the impact of using cropland to grow feed grains and the production of fertilizers and pesticides needed to grow those feed grains. According to the Food and Agriculture Organization of the United Nations (FAO), feed production and processing is the main source of emissions from livestock production.16 Emissions associated with feed production could be mitigated through different systems of livestock production, namely pasture-based livestock production, which we address in the mitigations section later in this comment. Leaving feed-associated emissions out of the analysis obscures that fact and paints an incomplete picture of Waukon Dairy’s climate impact.

Rules for Manure Application Rates are Inadequate The EAW states that “Riverview will land apply manure at agronomic rates based on Attachment A of the MPCA MMP, and “Fertilizer Guidelines for Agronomic Crops in Minnesota” (BU-06240-s) from the University of Minnesota Extension, revised 2001.” These guidelines are based on the Maximum Return to Nitrogen (MRTN), which centers around economic risk and cost factors, making it an inadequate tool to limit nitrate pollution.

The MRTN relies on calculating the price ratio for the cost per pound of nitrogen divided by the value of corn per bushel.17 The price ratio used to calculate the MRTN varies based on the price of fertilizer; an Extension fact sheet on fertilizing corn in Minnesota gives this example:

An example calculation of the price/value is if N fertilizer costs $.40 per lb N (or $820 per ton of anhydrous ammonia), and corn is valued at $4.00 per bushel, the ratio would be 0.40/4.00 = 0.10.18

For CAFOs, manure is free and abundant. As a result, the MRTN suggests using a 0.05 price ratio, saying it is “relevant to those that have manure readily available at low (or no) cost.” The recommendations go on to say, “For those that pay a premium, the 0.1 price ratio MRTN, or higher, may be more relevant and will result in a lower application rate.”19 This essentially means that a farmer with free manure can apply more since it costs less than commercial fertilizer or purchasing manure.

The MRTN is an inappropriate model to use since it is based on prices and maximizing profits, which have nothing to do with crop nitrogen needs. Actual crop nitrogen needs are determined by a complex set of variables, including timing, intensity and amount of precipitation; amount of sunshine; insect, weed and disease pressures; other nutrient deficiencies; the amount of soil organic matter; and soil type and texture.

We realize this is more an issue with the General Feedlot Permit, which has manure application guidelines based on the MRTN, than it is an issue with this specific feedlot. We raised this issue in our comment on the

16 Food and Agriculture Organization of the United Nations, Key Facts and Findings, http://www.fao.org/news/story/en/item/197623/icode 17 Melissa Wilson, New Manure Application Rate Guidelines for Minnesota. (University of Minnesota Extension, 2019) https://blog-crop-news.extension.umn.edu/2019/09/new-manure-application-rate-guidelines.html 18 University of Minnesota Extension. Fertilizing Corn in Minnesota. Reviewed in 2020. https://extension.umn.edu/crop-specific-needs/fertilizing-corn-minnesota 19 Melissa Wilson, New Manure Application Rate Guidelines for Minnesota. (University of Minnesota Extension, 2019) https://blog-crop-news.extension.umn.edu/2019/09/new-manure-application-rate-guidelines.html

General Feedlot Permit earlier this year. Still, it bears repeating that the Waukon Dairy EAW underestimates the operation’s environmental impacts.

Mitigations are Inadequately Evaluated The animal feedlot EAW form requires a discussion of mitigations. It says the project must describe “any proposed feedlot design features or air or odor emission mitigation measures to be implemented to avoid or minimize potential adverse impacts and discuss their anticipated effectiveness.” The EAW also says, “If the project may cause any adverse environmental impacts not addressed by items 1 to 10, identify and discuss them here, along with any proposed mitigation.” It goes beyond this to also require a discussion of “any alternatives or mitigative measures that have been or may be considered.” In other words, Waukon Dairy must detail not only the mitigations that it plans on implementing, but also mitigations that exist and could be implemented.

Despite the call to explore mitigations, the Waukon Dairy EAW contains no discussion of pasture-based dairy production, which is arguably the most effective mitigation of all. Management intensive grazing that is adapted to region, climate and the condition of the pasture or rangeland has multiple benefits. These include:20

• Distributing manure evenly on the land • Encouraging populations of dung beetles and other beneficial soil organisms that enhance nutrient cycling • Using little or no synthetic nitrogen or other agrichemical inputs • Eliminating or minimizing the need for manure storage facilities • Maximizing soil organic carbon sequestration • Providing opportunities to integrate crop and livestock production for enhanced nutrient cycling and uptake efficiency

In addition to improving soil health, reducing the need for chemical inputs and eliminating many of the emissions associated with manure management, pasture-based systems can also reduce emissions from enteric fermentation. Some studies show that emissions per cow are about 15% less for grazing operations than for confinement operations.21 And because animals are primarily fed grass, grazing operations also minimize the need for purchased feed and the climate impacts of growing that feed.

This is a stark contrast to the CAFO model of production proposed by Waukon Dairy. According to the EPA’s GHG inventory, manure deposited on pasture or rangelands “decompose[s] aerobically and produce[s] little or no CH4.” However, manure handled in liquid-based systems decomposes anaerobically and produces large amounts of methane. Methane emissions also increase when producers use long-term storage systems like lagoons, which can collect and hold liquefied manure for 10 to 15 years.22 This demonstrates that pasture- based operations avoid many of the GHG emissions from manure management.

20 National Sustainable Agriculture Coalition, Agriculture and Climate Change: Policy Imperatives and Opportunities to Help Producers Meet the Challenge, (Washington DC, 2019). 21 C. Alan Rotz, Symposium review: Modeling greenhouse gas emissions from dairy farms, (Journal of Dairy Science, July 2018). 22 Inventory of U.S. Greenhouse Gas Emissions and Sinks, (US Environmental Protection Agency, 2020).

Perhaps most importantly, grazing and pasture-based systems boost the ability of a farm to adapt to climate change. In Minnesota, record snowfall and flooding in 2019 led to the latest planting on record. In addition, there were over 1 million acres of corn in the state that were “prevented plantings,” or the failure to plant an insured crop.23 These real-life impacts of climate change are making it difficult for many farmers to stay in business.

Many of the practices used on pasture-based operations boost soil health and make farms more resilient to climate impacts. Boosting soil health increases the water-holding capacity of soil, thereby increasing resilience to floods and drought. For example, “A typical degraded Midwest soil with 1% organic matter may hold less than 1” of rain before becoming saturated, at which point additional rain runs off, carrying chemicals, sediment and manure into nearby streams. The same soil restored to 5% soil organic matter may hold 3.5” of rain before becoming saturated.”24 Healthy soils also have better structure, making a farm more immune to erosion.25 In 2017, the Minnesota Interagency Climate Adaptation Team cited building resilience to extreme precipitation as a priority,26 which pasture-based production could accomplish.

In an extremely challenging farm economy, it is of the utmost importance that farms can withstand extreme precipitation, drought and storms. By using practices that build healthier soils, pasture-based dairies will fare much better in weather extremes. This is critical to keep Minnesota agriculture viable and help farmers stay in business.

Pasture-based agriculture can also help avoid water quality issues. Due to increasing rainfall and flooding from climate change, the risk of an overflowed or breached manure lagoon is high. In 2018, Hurricane Florence caused many manure lagoons to overflow in North Carolina, leading to contaminated water and severe public health impacts.27 Similar manure lagoon spills occurred in Iowa last year during extreme flooding.28

The MPCA has denied permits for CAFOs before. Citing the need to address elevated levels of nitrate in drinking water in southeastern Minnesota, MPCA denied a general permit for the proposed Catalpa swine facility in 2018.29 Extreme storms and flooding are likely to cause an overflowed or breached manure lagoon at Waukon Dairy at some point. This should trigger an EIS to further explore the environmental risks of the proposed expansion.

Agricultural Consolidation is Hurting Minnesota Farmers No conversation about agriculture in Minnesota can ignore the damaging impacts of consolidation on farmers. Farmers are facing the most difficult farm economy since the 1980s. Increases in farm debt,

23 John Newton, Prevent Plantings Set Record in 2019 at 20 Million Acres, (Farm Bureau, 2019). 24 Duane Hvorka, State & Local Soil Health Strategies, (Izaak Walton League of America, 2019). 25 National Sustainable Agriculture Coalition, Agriculture and Climate Change: Policy Imperatives and Opportunities to Help Producers Meet the Challenge, (Washington DC, 2019). 26 Adapting to Climate Change in Minnesota, (Interagency Climate Adaptation Team, 2017). 27 Shefali Sharma, Hogwash and its Aftermath: Climate Change and Corporate Accountability after Hurricane Florence, (Institute for Agriculture and Trade Policy, 2018). 28 Erin Jordan, Overflowing Manure Tanks Reported in Western Iowa, Eastern Iowa on Alert, (The Gazette, Sioux City, March 2019). 29 Cathy Rofshus, MPCA Commissioner denies permit to proposed feedlot, recommends study of nitrate- contaminated waters in the sensitive karst region of southeast Minnesota, (MPCA, 2018).

bankruptcies and land values have far outstripped farm assets and income, making it increasingly difficult for farmers to hold on to their land. Farm bankruptcies rose 24% between September 2018 and September 2019 and were at decade-high levels in some parts of the country. Farm debt is at a record high of $415 billion and has grown by nearly 40% since 2012, while asset values have climbed only 17%.30

Like the rest of U.S. agriculture, dairy farms are consolidating into fewer farms with more milk production per farm. Minnesota lost 315 dairies in 2019, including 47 in December alone.31 According to the latest Census of Agriculture, the number of dairy farms fell by 20% between 2012 and 2017. Yet, milk sales went up 3.4% in the same time period.32

The expansion of larger and more industrialized farms has contributed to financial stress on the dairy industry, most notably on small to mid-sized farms — the exact type of farm that is best for the climate and the environment. Industrial dairies have increased their production, which has driven down dairy prices paid to farmers, often below the cost of production. In doing so, industrial dairies have put increased financial pressure on smaller dairies with higher production costs or tighter margins. Across the country and in Minnesota, small and mid-sized dairies are struggling to operate with little to no farm income, often wiping out their savings and credit to stay in business.33 34

The low prices that are putting farms out of business are largely due to the overproduction of milk. For this reason, Minnesota should not continue to support mega-dairies that are harmful to the environment and climate and also contribute to the overproduction that is driving small and mid-sized pasture-based operations out of business. We need those farmers on the land to combat climate change, steward our land and support our rural communities. In addition to environmental considerations, MPCA must consider the well-being of the state’s family farmers in its decisions.

IATP thanks MPCA for this opportunity to comment.

Sincerely,

Tara Ritter Senior Program Associate, Climate Change and Rural Communities Institute for Agriculture and Trade Policy

Ben Lilliston Director of Climate Change and Rural Strategies Institute for Agriculture and Trade Policy

30 Farm Bankruptcies Rise Again: Chapter 12 Filings Increase 24% Compared to Year-Ago Levels (Farm Bureau, 2019). 31 Dairy Farm Activity Report, (MN Department of Agriculture, 2020). 32 Census of Agriculture, Dairy Cattle and Milk Production, (USDA National Agricultural Statistics, 2017). 33 Justin Fox, A Productivity Revolution is Wiping Out (Most) Dairy Farms, (Bloomberg, 2019). 34 James MacDonald and Doris Newton, Milk Production Continues to Shifting to Large-Scale Farms, (USDA Economic Research Service, December 2014).

-----Original Message----- From: [email protected] On Behalf Of [email protected] Sent: Wednesday, October 14, 2020 1:06 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Pam. I live in Mankato, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Pam Bartholomew 325 Meadow Woods Dr Mankato, MN 56001 41

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 1:47 PM To: Peterson, Charles V (MPCA) Subject: EIS should be required for all large farming operations

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Dear Mr. Peterson:

As a resident of SE MN, I feel strongly that an EIS be performed before approving of the proposed Waukon Dairy Riverview expansion..

I am surprised that such a large operation does not automatically need an EIS to be approved. Our karst topography leaves our ground water especially vulnerable to our agricultural practices. For the safety of all we must have rigorous EIS standards when a large diary is proposed. The impact on small local dairy's if this large operation is approved is tremendous. Historically small farmers make greater strides toward land stewardship as opposed to large factory farm operations. Please do your due diligence to protect our economy as well as our air and water quality.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Sincerely, bonnnie hammack 805 E 2nd st Winona, MN 55987-4418 42

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 2:33 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Leo. I live in st. Joe, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Leo Klisch PO Box 247 Saint Joseph, MN 56374-0247 43

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 2:35 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Elizabeth. I live in Dodge Center, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Elizabeth Olson 62191 190TH AVE Dodge Center, MN 55927-7973 44

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 3:40 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Pat. I live in Two Harbors, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

The loss of our small and mid-sized dairy farmers is of great concern. I've seen first-hand the impact on families and small communities that lose the hard-working farm families that are forced out of business by the mega-dairies. I also know the environmental consequences of nutrient pollution, and antibiotics in the environment and the potential for water and land degradation from large confined animal operations. An EIS is the bare minimum that is needed to fully evaluate numerous potential local impacts of the Waukon Dairy expansion before such an operation is permitted.

The consolidation of 10,000+ cows in a small area has huge environmental consequences for the surrounding land and water. The small farmers that are connected to the land are also its best stewards. The building of soil health the produces better food and forage by the use of regenerative practices that more and more small farmers are adopting is what we need to preserve our valued Minnesota natural resources under stress from flooding, drought, and extreme storms. We need to support small farmers and their communities and get animals back on the land where they belong.

Mr. Peterson, please do what is right for all Minnesotans and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Sincerely,

Pat Schmieder 7100 Mikkonen Rd Two Harbors, MN 55616-8060 45

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 4:32 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Paul. I live in Moorhead, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Paul Harris 704 20th Ave. S. Moorhead, MN 56560 46

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 4:41 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Christopher. I live in New Ulm, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Christopher Loetscher 415 N. German Street New Ulm, MN 56073 47

-----Original Message----- From: [email protected] On Behalf Of [email protected] Sent: Wednesday, October 14, 2020 9:23 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Cj. I live in Rushford, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Cj Robinson 43645 Bobcat Dr Rushford, MN 55971-5047 48

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 9:24 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Angel. I live in Lindstrom, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Angel Permaloff 25310 Olinda Trail Lindstrom, MN 55045-9017 49

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 11:47 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Scott. I live in Hendricks, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Scott Vizecky 3194 Co Hwy 4 Hendricks, MN 56136 50

-----Original Message----- From: [email protected] Sent: Thursday, October 15, 2020 2:12 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

This message may be from an external email source. Do not select links or open attachments unless verified. Report all suspicious emails to Minnesota IT Services Security Operations Center.

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Dear Mr. Peterson:

My name is Nancy. I live in North Branch, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Nancy Conger 8010 275th Ave NE North Branch, MN 55056 51

-----Original Message----- From: [email protected] Sent: Thursday, October 15, 2020 8:43 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

This message may be from an external email source. Do not select links or open attachments unless verified. Report all suspicious emails to Minnesota IT Services Security Operations Center.

______

Dear Mr. Peterson:

My name is Michael. I live in Two Harbors, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Michael Overend 557 Scenic Dr. Two Harbors, MN 55616 52

-----Original Message----- From: [email protected] On Behalf Of [email protected] Sent: Wednesday, October 14, 2020 11:38 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Dean. I live in Crosslake, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Dean Borgeson 36030 Bonnie Lakes Rd Crosslake, MN 56442 53

-----Original Message----- From: [email protected] On Behalf Of [email protected] Sent: Wednesday, October 14, 2020 8:32 AM To: Peterson, Charles V (MPCA) Subject: EIS is Necessary!

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Dear Mr. Peterson:

My name is Sandy. I live in Brainerd, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Sandy Loney 5730 Birchdale Road Brainerd, MN 56401-6849 54

-----Original Message----- From: [email protected] Sent: Wednesday, October 14, 2020 8:21 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Merry. I live in Cannon Falls, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Merry Sawdey 30844 56th Avenue Way Cannon Falls, MN 55009-7108 55

-----Original Message----- From: [email protected] Sent: Thursday, October 15, 2020 9:37 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Mary Dylkowski. I live in Stacy, MN

The Minnesota Pollution Control Agency's mission is to protect and improve the environment and human health.

I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

MARY DYLKOWSKI 23140 W MARTIN LAKE DR NE Stacy, MN 55079-8810 56

-----Original Message----- From: [email protected] Sent: Thursday, October 15, 2020 11:36 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

It's always the right time to protect small to mid-sized farmers along with our local and global environments by supporting them so they can practice current, improved & new ways of local farming that helps everyone. Don't harm the non-corporate farming industry when there are so many important opportunities for it just over the horizon by not requiring that the Riverview expansion require a full EIS!

My name is Janette. I live in Caledonia, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Janette Dean 103 N. Gjere Avenue, Townhouse 5 Caledonia, MN 55921-9644 57

-----Original Message----- From: [email protected] Sent: Thursday, October 15, 2020 12:44 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Mary. I live in St. Peter, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

I have experienced Riverview Dairies first hand when I lived in Stevens County, MN. when their operations began. It seemed harmless in the beginning, but as they expanded at the Morris site and into surrounding counties, I saw the damage to local roads, the extreme amount of water they used and their political pressure on the MN Legislature. Mr. Fehr was responsible for the elimination of the Citizen's Advisory Board that gave Minnesota's citizens to testify what it meant to local communities and elimination of many small farms that they bought up to produce feed for their huge herds. Intense agriculture that is very hard on the soil structure and water resources in areas where they establish their huge operations.

Here, where I currently live, I have friends who raise 280 dairy cows and are struggling to make a profit and one operation adding 10,500 dairy cattle to the market is unacceptable.! Allowing Riverview to consolidate huge portions of the dairy market in Minnesota, it robs small to mid-sized dairy farming families of their livelihood, it erodes one of the best solutions that we have to environmental issues by taking more small farmers off the land.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Thank you for your attention to this message.

Sincerely,

Mary Scharf 1204 Pine Pointe Curve Saint Peter, MN 56082-1344 58

-----Original Message----- From: [email protected] Sent: Thursday, October 15, 2020 9:40 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

I, Bonnie Haugen, am a dairy farmer by Canton, MN. Our family milks 165 cows this year, and we have operated this dairy business on these acres since 1993. Our son came home to manage the dairy in 2011, and now, his son is growing up wth the dream of being a dairy farmer.

The Waukon Dairy Riverview expansion brings many serious concerns to my mind. I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Being a dairy farmer, I understand that regulations can be burdensome and costly. I also understand that the regulations are designed to protect and keep the water, air, and ground safe for ourselves, our families, our community citizens, and our livestock. The huge amounts of water to be used by just one business, and the huge potentiial of manure, nitrogen, and other contaminants being over safe tolerances from this one business is too risky for Minnesotans.

When we bought these 230 acres in 1993, and I was getting advice from Dr. Andy Overby, my good veterinarian, he reminded me that "the solution to pollution is dilution". I agree, and having the proposed amount of cows with the anticipated amount of manure in one location is ludicrist. This is a huge risk of an accident, and so much can be destroyed unintentionally. That area of Minnesota already has environmental pressure from the other huge dairies.

This business should be subject to an EIS.

Economic concern is also paramount. There are studies showing that ten 100 cow dairies bring more economic stimulus to a community than one 1,000 cow dairy. That casts serious doubt on the economic merits on this business proposal. In addition, this particular model of dairy (like big box stores) directly puts unfair pressure on dairy farms such as ours, pushing family farms out of the dairy business. Businesses of this size take more than their fair share of water, plus township, county, and state road use. Property values of neighbors is lost, at least for the house sites already there. Will this business pay for any wells that need to be drilled if the current wells get contaminated or run dry form this businesses practices?

This business should be subject to an EIS.

Water above ground does not know any township, county, or state lines. Water below ground does not know any township, county, or state lines. Any run off from ditches may contaminate streams, then rivers, and eventually be a contributor to the dead zone in the Gulf of Mexico. Our midwest acres are already contributing to this problem, and I do not like the idea of adding to it.

Mr. Peterson, please do your part in helping our farm by Canton get a fair chance at continuing to operate. Do your part in people anywhere being able to drink, play and work in safe water. Ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Bonnie Haugen 12620 Deer Rd Canton, MN 55922-1600

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 9:07 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Brenda. I live in Foley, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion. Potential impacts to the air, water supply and soil will not be short term and the affects will be widespread, beyond the boundaries of the proposed plans.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Brenda Berkebile 9000 95th Ave NE Foley, MN 56329-9492 60

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 9:08 AM To: Peterson, Charles V (MPCA) Subject: For your consideration

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Dear Mr. Peterson:

My name is Bruce Larson. My family and I live in Winona, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hoping you and your family are safe and healthy.

Sincerely,

Bruce Larson 1334 Woodpark Rd Winona, MN 55987-5412 61

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 9:08 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Tim. I live in Altura, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Tim Ahrens 12969 Country Road 31 Altura, MN 55910 62

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 9:09 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Carrie. I live in Chokio, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Carrie Redden 15389 630th Avenue Chokio, MN 56221 63

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 9:16 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Andrew . I live in Northfield, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Andrew Ehrmann 4433 320TH st w Northfield, MN 55057 64

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 9:26 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Emilio. I live in Winona, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Emilio DeGrazia 211 W. Wabasha Winona, MN 55987 65

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 9:43 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Brian-Paco. I live in Marshall , MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Brian-Paco Bertrand PO Box 72 Marshall , MN 56258 66

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 10:05 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Laura. I live in Hayfield, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Laura Inman 72435 160th Ave Hayfield, MN 55940 67

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 10:30 AM To: Peterson, Charles V (MPCA) Subject: EIS for Riverview's New Waukon Dairy

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Dear Mr. Peterson:

I am a livestock farmer in Finlayson, MN and I demand a full EIS be performed on the proposed Waukon Dairy Riverview expansion.

The last three dairy farms in our area of Pine County quit milking or went bankrupt this year. I previously worked for a family-owned dairy processing plant in another state until I was laid off and the plant closed shortly after. Hundreds of people lost their jobs. Market consolidation is ruining the dairy industry for farmers and workers, and one operation adding 10,500 dairy cattle to the market at this time is unacceptable. This is economic injustice.

This is also environmental injustice. My livestock farm just completed Minnesota's Ag Water Quality Certification to do what's right for my neighbors and all those downstream of me. The least the state can do is require an Environmental Impact Statement from Waukon Dairy Riverview. The public deserves the right to make informed decisions about the businesses in our communities when they so dramatically affect our air and water quality.

Furthermore, if the pandemic has shown us anything, it's that relying on only a few large operations for our food supply is not resilient. Fewer dairy farmers on the land means less access to milk when there is an outbreak of illness or natural disaster in one area. This is not the direction our food system should be heading.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Stand up for justice.

Thank you for your consideration.

Sincerely,

Hannah Bernhardt 68393 Scotch Pine Rd Finlayson, MN 55735-4570 68

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 10:33 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Susan OBrien. I live in Winona, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

We live in a beautiful state! I can't imagine having neighbors stink up the air and threaten the water supply for the profit of big business. Family farms are good stewards of the land.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Susan OBrien 3690 w 8th St Winona, MN 55987-1905 69

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 10:51 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Deborah. I live in Winona, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Right now, I see small dairy farms losing out and shutting down as these huge operations take precedence. We need to keep our small farmers in business and not support these large dairy operations for many reasons.

I believe by allowing this, it is disregarding Minnesota's climate goals -- emitting more greenhouse gases, particularly methane and nitrous oxide, at a time when farmers are on the front lines of climate change. Small farmers want to help with solutions in agriculture through regenerative practices that build resilient soil, sequester carbon, and get animals back on the land where they belong

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Deborah Niebuhr 571 East Howard Street Winona, MN 55987-4349 70

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 11:09 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Kay. I live in Spicer, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Kay Slama 5380 132nd Ave NE Spicer, MN 56288 71

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 11:27 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Darwin. I live in Ghent, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Darwin Dyce 1764 330th St. Ghent, MN 56239 72

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 11:33 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Katy. I live in Mankato, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

I am particularly concerned about the air emissions from these very large facilities and their affect on the health and well-being of surrounding neighbors. In this age of the corona virus we are learning about disease transmission through the air. This has been under studied in large animal confinement operations.

What disease vectors are in the emissions from these facilities? Are they harming human health?

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS.

Hope you stay safe and healthy.

Sincerely,

Katy Wortel 1411 Pohl Rd Mankato, MN 56001-5751 73

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 11:37 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Nancy. I live in Morris, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Nancy Carpenter 202 W 6th St Morris, MN 56267 74

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 12:16 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Patrick Byron. I live in Winona, MN, grew up on a Waseca County dairy farm and still own farmland in Mower County, MN. I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion. Water quality AND quantity are HUGE factors regarding this project. The same issues were at play when my family ran a dairy operation in Waseca County. Experts have stated that our aquifers are under assault regarding regeneration. Coupled with manure waste this project is a serious problem in that soil type.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Stay safe and healthy.

Sincerely,

Patrick Byron 225 Main St Apt 101 Winona, MN 55987-3612 75

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 12:29 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Ilga. I live in Sauk Centre, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Ilga Polleitis 21914 Bay Loop, Sauk Centre, MN 56378-4725 76

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 12:43 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Steve. I live in Princeton, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Steve Jorgenson 36901 Xenon St NW Princeton, MN 55371-5600 77

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 1:12 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Michelle. I live in Winona, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Michelle Wiltgen 751 E HOWARD ST Winona, MN 55987 78

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 1:20 PM To: Peterson, Charles V (MPCA) Subject: A full EIS for Riverview Dairy expansion

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Dear Mr. Peterson:

My name is Molly. I am an organic farmer who lives Stillwater, MN. I am writing because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

This review is necessary because the Riverview expansion would have a huge impact on small and mid- sized dairy farms, who are struggling even more than ever now.

You also need to perform this review because expansion of large dairy farms has a huge environmental impact and you are charged with fully understanding this impact before a project moves forward.

To protect the livelihood of family dairy farmers AND to protect Minnesota's environment, a full EIS must be completed.

Sincerely,

Molly Schaus 512 Hickory St W Stillwater, MN 55082-4426 79

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 1:41 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Sara. I live in Northfield, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Sara Brice 702 Aldrich Dr Northfield, MN 55057-3915 80

From: Eric Lindberg Sent: Friday, October 16, 2020 2:28 PM To: Peterson, Charles V (MPCA) Cc: Joy Anderson ; Ellen Anderson ; Aaron Decker Subject: Waukon Dairy-Riverview LLP EAW - MCEA Comments

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Mr. Peterson,

At Joy Anderson's request, please see the attached letter, comments, and exhibits thereto regarding the above referenced project.

Acknowledgement of receipt would be greatly appreciated. Regards, Eric

Due to COVID-19 , MCEA's staff are working remotely for now. Be Safe, Stay Well.

Eric Lindberg Legal Assistant Minnesota Center for Environmental Advocacy Direct: (651) 287-4868 Mobile (612) 208-4558 Website: www.mncenter.org Facebook: www.facebook.com/MCEA1974 Twitter: @MCEA1974 Instagram @MCEA1974

October 16, 2020

Mr. Charles Peterson Project Manager VIA E-MAIL Minnesota Pollution Control Agency [email protected]

Re: Environmental Assessment Worksheet for Waukon Dairy-Riverview LLP

Dear Mr. Peterson,

Minnesota Center for Environmental Advocacy (“MCEA”) appreciates the opportunity to comment on the Environmental Assessment Worksheet (“EAW”) for Waukon Dairy-Riverview LLP. This gives MCEA the opportunity to provide comments on the essential need to fully account for and analyze greenhouse gas emissions of concentrated animal feeding operations, to have a completed aquifer test as part of the EAW, and to fully analyze the cumulative effects of adding so much more manure to fields in an already-impaired watershed.

Please see our comments for further discussion. Again, we thank you for the opportunity to continue these important discussions regarding the protection of our state’s environment.

Sincerely,

/s/Joy Anderson Joy Anderson Senior Staff Attorney

JA/ad

Enclosures

Comments of the Attorneys General of California, Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Washington

August 26, 2019 Via electronic submission to www.regulations.gov ATTN: Docket ID No. CEQ-2019-0002

Edward A. Boling Associate Director for the National Environmental Policy Act Council on Environmental Quality 730 Jackson Place, NW Washington, DC 20503 Re: Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions, 84 Fed. Reg. 30,097 (June 26, 2019) Docket No. CEQ-2019-0002

Dear Associate Director Boling: The undersigned State Attorneys General of California, Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Washington (hereinafter, “the States”) respectfully submit these comments opposing the Council on Environmental Quality’s (“CEQ”) “Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions” (“Draft Guidance”).1 CEQ’s Draft Guidance is inconsistent with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and should be withdrawn for several reasons. First, although the Draft Guidance focuses on greenhouse gas (“GHG”) emissions, it fails to address climate change and its impacts. NEPA does not permit, and CEQ may not direct, agencies to ignore the well-documented impacts of climate change in their environmental impact analyses. Second, the Draft Guidance undermines NEPA’s full-disclosure purpose and conflicts with NEPA’s requirements in multiple ways, including: by failing to provide clarity on how agencies should analyze indirect climate change impacts; by inadequately considering cumulative impacts; by improperly minimizing the analytical value of monetizing climate impacts and supporting an unbalanced approach to cost-benefit analysis; by discouraging analysis and mitigation of a project’s climate impacts; and by failing to direct federal agencies to consider climate adaptation and resiliency when analyzing a project’s environmental impacts and

1 84 Fed. Reg. 30,097 (June 26, 2019), Docket No. CEQ-2019-0002. 1

Exhibit 1 to MCEA's Comments on Riverview EAW mitigation for those impacts. In the States’ experience, a robust assessment of climate impacts is not only possible but is also critical to adequate review of environmental impacts under NEPA and its state analogues. Rather than providing clarity, CEQ rejects the positions taken its prior administrative guidance on the analysis of climate change impacts required under NEPA with an unsupported and outdated three-page document that does not take the threat of climate change seriously.2 In so doing, CEQ is creating additional legal risk for both federal agencies and project applicants. For all of these reasons, detailed below, we urge CEQ to abandon this Draft Guidance. In addition, we request that CEQ revise and readopt the previous “Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews” (“2016 Guidance”) issued in 2016 and withdrawn in 2017.3 If readopted, the 2016 Guidance should be updated consistent with current case law interpreting NEPA and strengthened to reflect the severe and pervasive threats from climate change.

I. THE CRITICAL IMPORTANCE OF ADDRESSING CLIMATE CHANGE

It is well accepted that human-caused or “anthropogenic” GHG emissions are driving climate change that endangers the public health and welfare.4 Global GHG emissions reached an all-time high in 2018, underscoring the need for more immediate and stronger action to address climate change.5 And global annual average temperatures have “increased by more than 1.2°F (0.65°C) for the period 1986-2016 relative to 1901-1960.”6 Moreover, recent international assessments of climate change and its impacts demonstrate the urgency and enormity of the situation. In October 2018, the leading international body of climate scientists—the Nobel-prize- winning Intergovernmental Panel on Climate Change (“IPCC”)—issued a report finding that, absent substantial GHG reductions by 2030 and net zero emissions by 2050, warming above

2 Because existing NEPA regulations do not specifically address GHG impacts analysis, CEQ’s Draft Guidance represents the only guidance on GHG analysis from the NEPA expert administrative agency. 3 81 Fed. Reg. 51,866 (Aug. 5, 2016). A copy of the 2016 Guidance is attached as Exhibit 1 to this letter. CEQ withdrew the 2016 Guidance pursuant to Executive Order 13783 on April 5, 2017. See 82 Fed. Reg. 16,576 (April 5, 2017). 4 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009). 5 Le Quéré, C. et al., Global Carbon Budget 2018, 10 EARTH SYST.SCI.DATA 2141 (2018), https://doi.org/10.5194/essd-10-2141-2018; Chelsea Harvey, More CO2 Released in 2018 Than Ever Before, E&E NEWS (Dec. 6, 2018), https://www.eenews.net/climatewire/stories/1060108875. 6 U.S. Global Change Research Program, Climate Science Special Report: Fourth National Climate Assessment, Volume I & II (2017) [Wuebbles, D.J., D.W. Fahey, K.A. Hibbard, D.J. Dokken, B.C. Stewart, and T.K. Maycock eds.], https://www.globalchange.gov/browse/reports/climate-science-special- report-fourth-national-climate-assessment-nca4-volume-i. 2

Exhibit 1 to MCEA's Comments on Riverview EAW 1.5°C (2.7°F) from pre-industrial levels is likely and would have wide-ranging and devastating consequences.7 The federal government has also previously recognized the severe and growing threats posed by climate change. In 2017, thirteen federal agencies released the first volume of the Fourth National Climate Assessment (“Assessment”), concluding that “[c]hanges in the characteristics of extreme events are particularly important for human safety, infrastructure, agriculture, water quality and quantity, and natural ecosystems. Heavy rainfall is increasing in intensity and frequency across the United States and globally and is expected to continue to increase.”8 On November 23, 2018, the same group of thirteen federal agencies released the second volume of the Assessment, which thoroughly evaluates the harmful impacts of climate change that different regions of the country are experiencing and the projected risks climate change poses to our health, environment, economy, and national security.9 The Assessment reflects the work of more than 300 governmental and non-governmental experts, was externally peer-reviewed by a committee of the National Academies of Sciences, Engineering and Medicine, and underwent several rounds of technical and policy review by the federal agencies of the U.S. Global Change Research Program.10 The two volumes of the Assessment represent the federal government’s most up-to-date and comprehensive analysis of climate science and the impacts of climate change on the United States.11 The second volume of the Assessment cautions that “[i]n the absence of significant global mitigation action and regional adaptation efforts, rising temperatures, sea level rise, and changes in extreme events are expected to increasingly disrupt and damage critical infrastructure and property, labor productivity, and the vitality of our communities.”12 Further, “[w]hile mitigation and adaptation efforts have expanded substantially in the last four years, they do not yet approach the scale considered necessary to avoid substantial damages to the economy, environment, and human health over the coming decades.”13 Documenting many of the record- setting phenomena we have recently seen, including fires, floods, other extreme weather, and sea level rise, the second volume emphasizes the increasing vulnerability of our built environment as these phenomena become the new normal or even more extreme.14 Additional studies support these disturbing findings. For instance, a modeling analysis of 22 recent hurricanes by U.S.

7 See IPCC Press Release, Summary for Policymakers of IPCC Special Report on Global Warming of 1.5º C Approved by Governments (Oct. 8, 2018), https://www.ipcc.ch/site/assets/uploads/2018/11/pr_181008_P48_spm_en.pdf; IPCC Special Report, Global Warming of 1.5º C (IPCC Special Report), https://www.ipcc.ch/sr15/. 8 Assessment, Volume I, supra note 6, at 10. 9 U.S. Global Change Research Program, Impacts, Risks, and Adaptation in the United States: Fourth National Climate Assessment, Volume II (D.R. Reidmiller et al. eds., 2018), https://nca2018.globalchange.gov/. 10 Id. at iii, 2. 11 Id. at 1; see also Global Change Research Act of 1990, Pub. L. No. 101-606, 15 U.S.C. §§ 2921-2961. 12 Assessment, Volume II, supra note 9, at 25-32 (Summary Findings). 13 Id. at 26. 14 See, e.g., id. at 444, 669-1,308 (documenting regional impacts of climate change). 3

Exhibit 1 to MCEA's Comments on Riverview EAW government scientists concluded that future hurricanes will have stronger maximum winds, move slower, and drop more precipitation.15 The States are already facing these severe impacts of climate change.16 In California, climate change is responsible for successive record-breaking fire seasons resulting in unprecedented loss of life and billions of dollars in damages and economic harm. The 2017 wildfire season killed dozens of people, destroyed thousands of homes, forced hundreds of thousands to evacuate, and burned more than half a million acres.17 In August 2018, before the devastating Camp Fire that killed more than 80 people, California released a report suggesting that large wildfires (greater than 25,000 acres) could become 50% more frequent by the end of the century if GHG emissions are not reduced.18 Climate change is expected to make longer and more severe wildfire seasons the new normal for California.19 Besides the immediate threats they pose to life and property, wildfires significantly impair both air quality (via smoke and ash that can hospitalize residents) and water quality (via the erosion of hillsides stripped of their vegetation). California also weathered a historic five-year drought and a variety of other unprecedented phenomena increasingly harming the health and prosperity of Californians from all parts of the state.20 Drought conditions beginning in 2012 left reservoirs across the state at record low levels, often no more than a quarter of their capacity. By 2015, the Sierra snowpack—critical to California’s water supply, tourism industry, and hydroelectric power— was the smallest in at least 500 years.21 In the Central Valley, the drought cost California agriculture about $2.7 billion and more than 20,000 jobs in 2015 alone.22 With over six-hundred miles of coastline and 2.2 million people living in shoreline towns and communities, Connecticut’s residents are extremely vulnerable to the impacts of climate events. Connecticut has already experienced significant damage to natural resources, homes, and

15 Gutmann et al., Changes in Hurricanes from a 13-Yr. Convection-Permitting Pseudo-Global Warming Simulation, 31 J. CLIMATE 3,643 (Jan. 24, 2018) (abstract), https://doi.org/10.1175/JCLI-D-17-0391.1. 16 A detailed summary of state-specific climate change impacts is set forth in the Comments of Attorneys General of New York, et al. on Proposed Rule: Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units: Emission Guideline Implementing Regulations; New Source Review Program, Appendix A: Climate Change Impacts, Docket Id. No. EPA-HQ-OAR-2017-0355- 24817 (Oct. 31, 2018), https://www.regulations.gov/document?D=EPA-HQ-OAR-2017-0355-24817. 17 Lauren Tierney, The Grim Scope of 2017’s California Wildfire Season Is Now Clear. The Danger’s Not Over., WASH. POST (Jan. 4, 2018), https://www.washingtonpost.com/graphics/2017/national/california- wildfires-comparison/. 18 Bedsworth, L. et al., 2018 Statewide Summary Report, California's Fourth Climate Change Assessment at 9 (2018), www.climateassessment.ca.gov. 19 California Department of Forestry and Fire Protection, California’s Forests and Rangelands: 2010 Assessment, Ch. 3-7 (2010), https://frap.fire.ca.gov/media/3179/assessment2010.pdf. 20 See generally California Air Resources Board, California’s 2017 Climate Change Scoping Plan Update: The Strategy for Achieving California’s 2030 Greenhouse Gas Target, (Nov. 2017), https://ww3.arb.ca.gov/cc/scopingplan/scoping_plan_2017.pdf. 21 See NOAA, National Centers for Environmental Information, Multi-Century Evaluation of Sierra Nevada Snowpack, https://www.ncdc.noaa.gov/news/multi-century-evaluation-sierra-nevada-snowpack. 22 California’s 2017 Climate Change Scoping Plan Update, supra note 20, at 7. 4

Exhibit 1 to MCEA's Comments on Riverview EAW infrastructure from more frequent and more intense storms, which is consistent with scientists’ predictions of new weather patterns attributable to climate change.23 For example, in Connecticut alone, Hurricane Irene (2011) caused power outages affecting 754,000 citizens, and Superstorm Sandy (2012) forced a shutdown of Connecticut’s transportation system, causing power outages to 600,000 people and inflicting almost $2 billion in statewide damages.24 Superstorm Sandy forced evacuations of thousands of Connecticut residents, damaged roads and infrastructure, and took nine days for the affected utilities to restore power.25 As one of the most low-lying states in the nation, Delaware is particularly at risk from the harms of climate change, including sea level rise. For example, a 2012 Delaware Sea Level Rise Vulnerability Assessment found that sea level rise of only 0.5 meters would inundate 8% of the state’s land area.26 Areas inundated would include “transportation and port infrastructure, historic fishing villages, resort towns, agricultural fields, wastewater treatment facilities and vast stretches of wetlands and wildlife habitat of hemispheric importance.”27 The Assessment concluded that “every Delawarean is likely to be affected by sea level rise whether through increased costs of maintaining public infrastructure, decreased tax base, loss of recreational opportunities and wildlife habitat, or loss of community character.”28 As a densely populated area located at the confluence of two tidal rivers, the District of Columbia is particularly vulnerable to the effects of climate change including dangerous heat waves, flooding caused by rising tides and heavy rains, and severe weather. Nuisance flooding in riverfront areas has already increased by more than 300% according to the National Oceanic and Atmospheric Administration.29 The U.S. Army Corps of Engineers conservatively predicts up to 3.4 feet of additional sea level rise in the District by 2080.30 Heat emergencies are also projected to increase from 30 days per year (historic average) to 30-45 days by the 2050s, and to 40-75 days by the 2080s.31

23 Building a Low Carbon Future for Connecticut: Recommendations from the Governor’s Council on Climate Change (Dec. 18, 2018), https://www.ct.gov/deep/lib/deep/climatechange/publications/building_a_low_carbon_future_for_ct_gc3_ recommendations.pdf. 24 NOAA, National Centers for Environmental Information, U.S. Billion-Dollar Weather and Climate Disasters: Overview, https://www.ncdc.noaa.gov/billions/. 25 John Burgeson, Rising Above the Tide: 5 Years Since Sandy, CTPOST, Oct. 28, 2017, https://www.ctpost.com/local/article/Rising-above-the-tide-5-years-since-Sandy-12313727.php. 26 Delaware Department of Natural Resources and Environmental Control, Preparing for Tomorrow’s High Tide: Sea Level Rise Vulnerability Assessment for the State of Delaware at ix (July 2012), http://www.dnrec.delaware.gov/coastal/Documents/SeaLevelRise/AssesmentForWeb.pdf. 27 Id. 28 Id. 29 Climate Ready DC, The District of Columbia’s Plan to Adapt to a Changing Climate at A3, https://doee.dc.gov/sites/default/files/dc/sites/ddoe/service_content/attachments/CRDC-Report-FINAL- Web.pdf. 30 Id. 31 Id. at A2. 5

Exhibit 1 to MCEA's Comments on Riverview EAW In addition to threatening the lives of Illinois citizens, climate change is fundamentally altering the state’s farming industry and greatest environmental asset, Lake Michigan. The farming sector is particularly vulnerable. In spring 2019, record flooding delayed crop planting across the state, causing the U.S. Department of Agriculture to declare an agricultural disaster for the entire state.32 Climate disruption also contributes to whipsawing water levels on Lake Michigan. In January 2013, the Lake Michigan’s water level fell to an all-time low. In 2015, the water level then climbed to its highest level since 1998.33 These rapid changes harm commercial shipping, recreational boaters, wildlife, and beach-goers. By 2100, Massachusetts is projected to experience between 4.0 and 7.6 feet of sea level rise relative to mean sea level from the year 2000, with up to 10.2 feet of sea level rise possible under a high emissions scenario.34 Warmer temperatures, extended heat waves, increased frequency and extent of flooding, changing precipitation, and increasingly severe weather events are already significantly impacting public health, the environment, and agriculture in Massachusetts, causing significant property damage, and straining key infrastructure including transportation networks, wastewater treatment systems, drinking water sources, and energy infrastructure.35 New York is experiencing dramatic increases in the frequency and intensity of extreme rain storms.36 For example, devastating rainfall from Hurricane Irene in 2011 dropped more than 11 inches of rain in just 24 hours, causing catastrophic flooding, power outages, displacement and loss of life, and estimated damage totaling $1.3 billion. New York’s rate of sea level rise is much higher than the national average and could account for up to six feet of additional rise by 2100 if GHG emissions are not abated. Storm surge on top of high tide on top of sea level rise is a recipe for disaster for coastal New York. For example, the approximately 12 inches of sea level rise New York City has experienced since 1900 may have expanded Hurricane Sandy’s flood area in 2012 by about 25 square miles, flooding the homes of an additional 80,000 people

32 U.S. Dept. of Agriculture, USDA Designates 102 Illinois Counties as Primary Natural Disaster Areas (Aug. 14, 2019), https://www.fsa.usda.gov/news-room/emergency- designations/2019/ed_2019_0814_rel_0074. 33 Tony Briscoe, Lake Michigan Water Levels Rising at Near Record Rate, Chicago Tribune (July 12, 2015), available at http://www.chicagotribune.com/news/local/breaking/ct-lake-michigan-water-levels- met-20150710-story.html. 34 Northeast Climate Science Center, University of Massachusetts, Massachusetts Climate Change Projections (Mar. 2018), https://necsc.umass.edu/projects/massachusetts-climate-change-projections. 35 See, e.g., id. at 4-6; Massachusetts Dep’t of Public Health, CAPACITY TO ADDRESS THE HEALTH IMPACTS OF CLIMATE CHANGE IN MASSACHUSETTS, 6 (Apr. 2014), available at http://www.mass.gov/eohhs/docs/dph/environmental/exposure/climate-change-report-2014.pdf; Runkle et al., NOAA National Centers for Environmental Information, State Summaries 149-MA, Massachusetts, 4 (2017), available at https://statesummaries.ncics.org/downloads/MA-screen-hi.pdf. 36 Current & Future Trends in Extreme Rainfall Across New York State, A Report from the Environmental Protection Bureau of New York State Attorney General Eric T. Schneiderman (Sept. 2014), https://ag.ny.gov/pdfs/Extreme_Precipitation_Report%209%202%2014.pdf (based on data from the 2014 National Climate Assessment and the National Oceanographic and Atmospheric Administration’s Northeast Regional Climate Center). 6

Exhibit 1 to MCEA's Comments on Riverview EAW in the New York City area alone.37 Air pollution in New York may also be worsening due to climate change. According to the Third National Assessment on Climate Change, a scenario in which greenhouse gases continue to increase would lead to higher ground-level ozone concentrations in the New York metropolitan region, driving up the number of ozone-related emergency room visits for asthma in the area by 7.3%—more than 50 additional ozone-related emergency room visits per year in the 2020s, compared to the 1990s.38 The New York City metropolitan area experienced elevated ozone pollution levels in the years 2015-2017, a period that included the hottest years on record.39 In Pennsylvania, temperatures have already increased 1.8°F in the last century, and are projected to rise an additional 5.4°F by 2050. Pennsylvania has seen a related rise in precipitation, causing increased flooding and landslides that cost the Commonwealth an additional $125.7 million for infrastructure replacement in 2018 alone. Climate change is also worsening air quality, damaging crops, and increasing the prevalence of invasive species and insect-transmitted diseases.40 Climate change will significantly adversely affect Washington’s public health and its coasts, mountains, and forests. The warming climate already is increasing ocean acidification,41 decreasing Washington’s snowpack,42 and threatening Washington’s forests and timber industry.43 With respect to public health, more frequent heat waves and more frequent and intense flooding may harm human health directly and may also exacerbate health risks from poor air quality and allergens.44 In addition, Washington is also experiencing decreasing winter mountain snowpack, and by the 2080s, snow pack is expected to decline 56-70%, impacting water availability for drinking, irrigation, hydropower, and salmon.45 For these reasons, the States are particularly concerned that federal agencies thoroughly consider GHG emissions and the consequences of climate change in their NEPA review and take

37 Horton, et al., New York City Panel on Climate Change 2015 Report, Chapter 2: Sea Level Rise and Coastal Storms, 1336 ANN.N.Y.ACAD.SCI. 36 (2015), http://onlinelibrary.wiley.com/doi/10.1111/nyas.12593/full. 38 U.S. National Climate Assessment, Climate Change Impacts in the United States, (2014) at 222 (citing P. E. Sheffield, et al., Modeling of Regional Climate Change Effects on Ground Level Ozone and Childhood Asthma, 41 AM.J.PREVENTIVE MEDICINE 251 (2011), http://download.journals.elsevierhealth.com/pdfs/journals/0749-3797/PIIS0749379711003461.pdf) 39 Am. Lung Ass’n, State of the Air 2019, at 5-6, 21, 37, 127-128 (2019), https://www.lung.org/assets/documents/healthy-air/state-of-the-air/sota-2019-full.pdf. 40 PENN.DEP’T OF ENVTL.PROTECTION, Climate Change in PA, https://www.depgis.state.pa.us/ClimateChange/index.html (last visited Aug. 22, 2019). 41 Climate Impacts Group, University of Washington, State of Knowledge Report, Climate Change Impacts and Adaptation in Washington State: Technical Summaries for Decision Makers, at ES-1 (Dec. 2013), (hereinafter “State of Knowledge Report”), https://cig.uw.edu/resources/special-reports/wa-sok/. 42 Id. 43 Id. at ES-4. 44 Id. at ES-4, ES-5. 45 Id. at ES-4, 6-1, 6-6, 6-11, 6-12. 7

Exhibit 1 to MCEA's Comments on Riverview EAW a hard look at the full environmental impacts, including climate-related impacts, of any proposed actions.

II. NEPA AND THE COUNCIL ON ENVIRONMENTAL QUALITY

Congress enacted NEPA in 1969 to establish a national policy for the environment and to create and maintain conditions under which man and nature can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations of Americans.46 NEPA is “our basic national charter for protection of the environment.”47 NEPA’s goals are to ensure agencies consider environmental consequences of their proposed actions and “inform the public about their decision-making process.”48 Nearly every major federal action requires compliance with NEPA, which also requires consultation with other federal agencies possessing expertise on particular resources impacted by a project, with the aim to help develop more robust alternatives. NEPA established CEQ within the Executive Office of the President to ensure that federal agencies meet their obligations under NEPA.49 CEQ reviews and approves federal agency NEPA procedures, approves alternative arrangements for compliance with NEPA in emergencies, and helps to resolve disputes between federal agencies and other governmental entities and members of the public.50 CEQ oversees NEPA implementation across the nation, principally through issuing regulations and guidance to implement NEPA’s procedural requirements and provide direction to both federal agencies and private project proponents. Over the past forty years, CEQ’s regulations and guidance have shaped NEPA’s implementation and have become integral to the daily functioning and responsible decision- making of numerous federal and state agencies. CEQ’s guidance also helps provide legal certainty to both federal agencies and private project applicants. And circuit courts reviewing challenges to NEPA compliance often rely on CEQ’s guidance documents as “persuasive authority offering interpretive guidance regarding the meaning of NEPA and the implementing regulations.”51 Rather than implement or properly interpret the law, however, CEQ’s Draft Guidance undermines NEPA’s letter and spirit, sows confusion about consideration of climate change impacts under NEPA, increases uncertainty, and creates new legal risks for projects subject to NEPA.

46 42 U.S.C. § 4321. 47 40 C.F.R. § 1500.1 (2018). 48 Draft Guidance, supra note 1, at 30,097. 49 42 U.S.C. § 4321. 50 See https://ceq.doe.gov/index.html (last visited August 22, 2019). 51 See, e.g., Wyoming v. U.S. Dep’t of Ag., 661 F.3d 1209, 1260 n.36 (10th Cir. 2011); New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 705 n.25 (10th Cir. 2009); American Rivers v. F.E.R.C., 201 F.3d 1186, 1200-01 & n.21 (9th Cir. 1999). 8

Exhibit 1 to MCEA's Comments on Riverview EAW III. CEQ UNLAWFULLY AND ARBITRARILY IGNORES THE EFFECTS OF CLIMATE CHANGE IN THE DRAFT GUIDANCE

CEQ’s 2016 Guidance offered clarity and consistency in how federal agencies should address climate change—including how climate change may alter an action’s environmental effects—in the environmental impact assessment process. Central to the prior guidance was the goal of identifying important interactions between climate change and environmental impacts from a proposed action. The 2016 Guidance appropriately focused on the environmental risks associated with climate change, recognizing the critical importance of climate change as a “fundamental environmental issue” whose effects “fall squarely within NEPA’s purview.”52 It also detailed the science on climate change, citing multiple international and federal government studies documenting the impacts of climate change.53 CEQ also emphasized the need to consider climate change and the evolving body of scientific information available to understand and identify a project’s affected environment.54 The Draft Guidance unlawfully and arbitrarily ignores a growing body of scientific literature regarding climate change. Notably absent from the three-page Draft Guidance is any discussion of climate change and its effects. Proper assessment of the effects of GHG emissions requires a recognition—wholly absent in the Draft Guidance—that climate change presents an extremely challenging threat that must be addressed in NEPA analyses. Instead, the Draft Guidance offers only a cursory overview of the assessment of a project’s GHG emissions. And despite its nominal focus on GHG emissions, the Draft Guidance only refers to climate effects in stating that GHG emissions “may be used as a proxy for assessing potential climate effects” and that an agency may qualitatively discuss the effects of GHG emissions based on literature.55 These passing references do little to underscore the significance of GHG emissions in the context of climate change or to acknowledge the severe impacts that our States and cities are already facing today. The Draft Guidance’s disregard for climate change is the latest in a series of the Trump Administration’s efforts to arbitrarily minimize or disregard the overwhelming scientific consensus that immediate and continual progress toward a near-zero GHG-emission economy by mid-century is necessary to avoid truly catastrophic climate change impacts.56 Indeed, CEQ’s

52 2016 Guidance, supra note 3, at 2. 53 Id. at 6-8. 54 Id. at 21. 55 Draft Guidance, supra note 1, at 30,098. 56 See Intergovernmental Panel on Climate Change (IPCC), Summary for Policymakers of IPCC Special Report on Global Warming of 1.5 C at 15 (2018). Multiple federal actions reflect the Trump administration’s repeated disregard for the need to reduce GHG emissions, including, among others: the Affordable Clean Energy Rule, 84 Fed. Reg. 32,520 (July 8, 2019) (rolling back Clean Power Plan emissions controls on existing power plants); the Safer Affordable Fuel-Efficient (SAFE) Vehicles Proposed Rule for Model Years 2021-2026 Passenger Cars and Light Trucks, 83 Fed. Reg. 42,986 (Aug. 24, 2018); and State of California v. EPA, No. 4:18-03237-HSG (N.D. Cal. May 31, 2018) (challenging EPA’s refusal to implement landfill methane emission regulations). 9

Exhibit 1 to MCEA's Comments on Riverview EAW refusal to address climate impacts in the Draft Guidance is all the more troubling in light of the federal government’s own conclusions, detailed above, that climate change resulting from GHG emissions is already having a serious impact on communities throughout the country and that immediate action is necessary to avoid the most severe long-term consequences.57 In the face of these severe and well-documented climate change impacts, CEQ’s guidance should highlight rather than minimize the critical importance of addressing climate change and its impacts in NEPA analyses. The Draft Guidance unlawfully and arbitrarily ignores these impacts and encourages agencies to minimize the treatment of GHG emissions and climate effects during NEPA review of federal projects.

IV. CEQ’S DRAFT GUIDANCE SUBVERTS THE PURPOSE AND REQUIREMENTS OF NEPA

CEQ’s Draft Guidance undermines NEPA’s purpose to promote informed decision- making by disregarding the most pressing environmental challenge of our time: climate change.58 As the Supreme Court long ago emphasized, and as the Draft Guidance itself acknowledges, NEPA requires agencies to take a “hard look” at all environmental consequences—whether direct or indirect—of any proposed action on the environment.59 And that “hard look” requirement obligates agencies to carefully consider every significant environmental impact of a project,60 which must necessarily include examining a project’s contribution to climate change through its GHG emissions.61 NEPA’s regulations, too, expressly require consideration of indirect effects on air, water, and other natural systems, like those resulting from climate change.62 Inherent in NEPA and its implementing regulations is a “rule of

57 Assessment, Volume I, supra note 6, at 16 (“[B]ased on extensive evidence, … it is extremely likely that human activities, especially emissions of GHGs, are the dominant cause of the observed warming since the mid-20th century[.]”); see also Assessment, Volume II, supra note 9 at 1453; Daniel R. Coats, Statement for the Record: Worldwide Threat Assessment of the U.S. Intelligence Community at 23 (Jan. 29, 2019), https://www.hsdl.org/?view&did=820727, (“Global environmental and ecological degradation, as well as climate change, are likely to fuel competition for resources, economic distress, and social discontent through 2019 and beyond. Climate hazards such as extreme weather, higher temperatures, droughts, floods, wildfires, storms, sea level rise, soil degradation, and acidifying oceans are intensifying, threatening infrastructure, health, and water and food security. Irreversible damage to ecosystems and habitats will undermine the economic benefits they provide, worsened by air, soil, water, and marine pollution.”). 58 See Assessment, Volume II, supra note 9, at 26, 73, 1347 (reaffirming that climate change is human- caused, that continued growth in emissions will produce economic losses across all sectors, and that mitigation measures do not “yet approach the scale considered necessary to avoid substantial damages to the economy, environment and human health over the coming decades”). 59 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989); Draft Guidance, supra note 1, at 30,097. 60 See Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (“NEPA…places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.”) (internal quotation marks and citations omitted). 61 See, e.g., WildEarth Guardians v. Jewell, 738 F.3d 298, 301 (D.C. Cir. 2013) (holding that agency took the requisite hard look at the effect of its decision to authorize the lease of public lands for coal mining operations on global climate change). 62 See 40 C.F.R. § 1508.8. 10

Exhibit 1 to MCEA's Comments on Riverview EAW reason,” which ensures that agencies determine whether and how to prepare an Environmental Impact Statement (“EIS”) based on the usefulness to the decision-making process of any new potential information regarding such impacts.63 While NEPA does not mandate substantive outcomes, the requirement that federal agencies consider and publicly disclose the environmental consequences of a proposed action, including actions that contribute to climate change, has practical significance.64 Although NEPA does not necessarily mandate that federal agencies reduce GHG emissions related to a proposed action, a full evaluation of a proposed action’s GHG emissions and/or climate change impacts under NEPA affects agency activity by increasing awareness and allowing meaningful evaluation of alternative courses of action. And disclosure of GHG impacts provides states and the public with useful information that increases their ability to lobby agencies and Congress to move toward greener and sustainable options in federal actions. The Draft Guidance moves in the wrong direction, muddying the waters on the analysis of climate change impacts under NEPA and creating new legal risks for actions subject to NEPA. As discussed in more detail below, the Draft Guidance conflicts with NEPA’s “hard look” mandate by: (1) failing to clarify how agencies analyze indirect climate change effects under NEPA; (2) improperly instructing agencies on cumulative impacts analysis; (3) encouraging agencies to forgo quantifying climate change impacts even though complex analysis and modeling of GHG impacts have been routinely performed by federal agencies since at least 2010; (4) discouraging a proper cost-benefit analysis; and (5) improperly indicating that evaluation of mitigation of GHG impacts is not required. In short, rather than informing agencies how to meaningfully analyze a project’s GHG emissions and climate change impacts,65 the Draft Guidance encourages agencies not to analyze a project’s likely climate change impacts and to avoid taking a “hard look” at climate-related impacts, in conflict with NEPA. As noted below,66 a growing body of case law demonstrates that, for many projects, CEQ’s instructions in the Draft Guidance on how to address climate change impacts under NEPA encourage agencies to disregard relevant environmental information and are thus contrary to the law and arbitrary and capricious.67

63 Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 754 (2004). 64 40 C.F.R. §§ 1501.5, 1501.6, 1500.5, 1508.7 (2019); see Robertson, 490 U.S. at 333 (“NEPA itself does not impose substantive duties mandating particular results, but simply prescribes the necessary process for preventing uninformed—rather than unwise—agency action”). 65 Compare 2016 Guidance, supra note 3, at 20-27. 66 See, e.g., WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 68-71 (D.D.C. 2019); Ctr. for Biological Diversity v. Nat’l Highway Transportation Safety Admin., 538 F.3d 1172, 1198-1203 (9th Cir. 2008); see also Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 532, 549-50 (8th Cir. 2003) (agencies must assess proposed action’s indirect effect on climate change when nature of effect is reasonably foreseeable, even if extent of that effect is not). 67 See Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“under the ‘arbitrary and capricious’ standard ... the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made”’). 11

Exhibit 1 to MCEA's Comments on Riverview EAW A. CEQ’s Draft Guidance Does Not Clarify to What Extent Agencies Must Consider Indirect GHG Emissions

CEQ’s disregard for indirect GHG emissions conflicts with NEPA, its regulations, and case law. As noted above, an agency conducting review under NEPA must consider the project’s direct and indirect environmental effects.68 Indirect effects are “caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.”69 Federal courts have held that upstream and downstream GHG emissions are an indirect effect of agencies authorizing projects such as pipelines and mining.70 Where an agency could deny a project on the ground that it would be too harmful to the environment, the agency is the “legally relevant cause” of both the direct and indirect effects of that project.71 Thus, federal agencies are required to analyze indirect GHG emissions under NEPA.72 The Draft Guidance, however, fails to clarify the extent to which agencies should consider GHG emissions from major federal actions. Instead, it employs broad language and general terms to significantly reduce the scope of environmental impacts that agencies should analyze under NEPA. Purporting to rely on the “rule of reason,” the Draft Guidance suggests that agencies “should analyze reasonably foreseeable environmental consequences of major federal actions, but should not consider those that are remote or speculative.”73 However, climate change harms are already occurring. Although there may be uncertainties in terms of additional types of harms and the magnitude of impacts, CEQ seems to ignore the very predicate that harms are happening now. And, rather than employ any “rule of reason,” the Draft Guidance attempts to limit agencies’ consideration of GHG emissions by not specifying the meaning of the terms or the analysis necessary for an agency to support such a determination. Litigation challenging NEPA review by the Federal Energy Regulatory Commission (“FERC”) provides a useful example of the proper analysis of GHG emissions as indirect effects under NEPA. FERC, in particular, has struggled in its approach to analysis of climate effects of pipeline decisions under NEPA and the Natural Gas Act.74 Historically, FERC contended that

68 40 C.F.R. § 1502.16. 69 40 C.F.R. § 1508.8(b). 70 See, e.g., Sierra Club, 867 F.3d at 1374 (“greenhouse-gas emissions are an indirect effect of authorizing this [pipeline] project, which FERC could reasonably foresee”); San Juan Citizens Alliance v. U.S. Bureau of Land Mgmt., 326 F. Supp. 3d at 1244 (finding that combustion emissions were indirect effect of agency’s decision to extract those natural resources); Montana Envtl. Info. Ctr. v. U.S. Office of Surface Mining, No. CV 15-106-M-DWM, 2017 WL 5047901, *3 (stating that “effects of the estimated 23.16 million metric tons of greenhouse gas emissions the Mining Plan EA concluded would result from combustion of the coal that would be extracted from the Mine” are indirect effects from coal trains). 71 Sierra Club, 867 F.3d at 1373. 72 Id. 73 Draft Guidance, supra note 1, at 30,098. 74 In April 2018, FERC issued a Notice of Inquiry (NOI) aimed at reevaluating its previous approach to balancing the competing interests involved in pipeline projects, to which it invited comments (Certification of New Interstate Natural Gas Facilities Notice of Inquiry, 163 FERC ¶ 61,042 (2018)); see also Rich Glick & Matthew Christiansen, FERC and Climate Change, 40 ENERGY L. J. 1, 43 (2019) 12

Exhibit 1 to MCEA's Comments on Riverview EAW upstream and downstream GHG emissions are not “reasonably foreseeable.”75 Based on this reasoning, FERC has taken the position that it need not analyze such emissions pursuant to NEPA, or factor them into its public convenience and necessity determinations under the Natural Gas Act.76 The court in Sierra Club v. FERC disagreed, holding that under NEPA, FERC must consider GHG emissions as indirect effects of a project.77 CEQ should provide clarity on the process of evaluating GHG emissions by instructing agencies to consider upstream and downstream GHG emissions as indirect effects of a project, as Sierra Club requires. Instead, the Draft Guidance directs agencies such as FERC to follow an approach inconsistent with NEPA and case law. NEPA, CEQ’s implementing regulations, and federal court decisions thus make clear that agencies cannot shirk their NEPA obligations by simply claiming that GHG emissions are too speculative.78 Any NEPA reviews conducted pursuant to the Draft Guidance—and thus in conflict with decisions such as Sierra Club v. FERC—will be unlawful and subject to increased litigation. By failing to describe the factors triggering rigorous analysis of GHG impacts, the Draft Guidance fails to reduce uncertainty, invites speculation, and reduces clarity for agencies in assessing GHG emissions. Rather than making agencies’ NEPA reviews less robust and more vulnerable to challenge, CEQ should provide agencies with more meaningful guidance on how to analyze indirect GHG emissions.

(recommending that FERC should “meaningfully engage the issue and develop a framework for fully considering climate change in the section 7 process”). 75 See, e.g., New Market Project Rehearing Order, 163 FERC ¶ 61,128 at P 34. 76 Id. at P 43 (“We are not aware of any basis that indicates the Commission is required to consider environmental effects that are outside of our NEPA analysis of the proposed action in our determination of whether a project is in the public convenience and necessity under section 7(c).”). 77 Sierra Club, 867 F.3d at 1373-75. 78 See, e.g., id. at 1374 (holding that agency had not provided a satisfactory explanation for why quantification of indirect GHG emissions was not feasible and stating, “we understand that emission estimates would be largely influenced by assumptions rather than direct parameters about the project, but some educated assumptions are inevitable in the NEPA process” (internal quotation marks and citations omitted)); San Juan Citizens Alliance, 326 F. Supp.3d at 1241-44 (holding that BLM’s failure to quantify and analyze the impacts of downstream GHG emissions was arbitrary, despite the agency’s finding that impacts were “not feasible to predict with certainty”); see Allegheny Defense Project v. FERC, No. 17- 1098, ___F.3d ___, 2019 WL 3518835 at *8, (D.C. Cir. Aug. 2, 2019) (holding “NEPA required the Commission to consider both the direct and indirect environmental effects of the Project, and that, despite what the Commission argues, the downstream greenhouse-gas emissions are just such an indirect effect,” (citing Sierra Club v. FERC and 40 C.F.R. § 1502.16(b))); see generally Scientists’ Inst. For Pub. Info, Inc. v. U.S. Atomic Energy Comm’n, 481 F.2d 1079, 1092 (D.C. Cir. 1973) (“Reasonable forecasting and speculation is thus implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as ‘crystal ball inquiry.’”). 13

Exhibit 1 to MCEA's Comments on Riverview EAW B. Vague and Undefined Terms in the Draft Guidance Add Legal Risk and Encourage Agencies to Unlawfully Avoid Quantification of GHG Emissions

The Draft Guidance contains numerous ambiguous terms that, in effect, would encourage agencies to unlawfully cast aside their obligations under NEPA. In particular, the Draft Guidance directs agencies to “attempt to quantify a proposed action’s projected direct and reasonably foreseeable indirect GHG emissions when the amount of those emissions is substantial enough to warrant quantification, and when it is practicable to quantify them using available data and GHG quantification tools.”79 But the Draft Guidance fails to explain what constitutes “substantial” emissions or what factors determine whether quantification would be “practicable.” CEQ’s decision to add these ambiguous terms to the Draft Guidance conflicts directly with the more straightforward language of the 2016 Guidance, which directed agencies to “quantify…direct and indirect GHG emissions, taking into account available data and GHG quantification tools.”80 The Draft Guidance provides agencies leeway to create their own technical definitions and, in some cases, to avoid analyzing a project’s climate change impacts altogether. What is more, if different agencies adopt their own interpretations of the terms set forth in the Draft Guidance, it is likely that major inconsistencies will arise in the processes by which different agencies assess GHG impacts under NEPA. The Draft Guidance also states that agencies “are not required to quantify effects where information necessary . . . is unavailable, not of high quality, or the complexity of identifying emissions would make quantification overly-speculative.”81 Here, too, the Draft Guidance fails to clarify what these terms mean or how they should be implemented, and the provision conflicts with both section 1502.22(b) of the NEPA implementing regulations regarding “Incomplete and Unavailable Information” and federal court decisions examining the scope of NEPA review.82 Specifically, section 1502.22(b) provides that where “the information relevant to reasonably foreseeable significant adverse impacts cannot be obtained because . . . the means to obtain it are not known,” the agency must still include in its EIS, among other items, “a summary of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment” and “the agency’s evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community.”83 Similarly, although agencies need not have “perfect foresight when considering indirect effects,”84 courts have rejected agency attempts to ignore an important aspect of a

79 Draft Guidance, supra note 1, at 30,098 (emphases added). 80 2016 Guidance, supra note 3, at 4. 81 Draft Guidance, supra note 1, at 30,098. 82 40 C.F.R. § 1502.22(b). 83 See id. 84 See WildEarth Guardians v. United States Office of Surface Mining, Reclamation & Enf’t, 104 F. Supp. 3d 1208, 1230 (D. Colo. 2015), order vacated as moot, appeal dismissed, 652 F. App’x 717 (10th Cir. 2016). 14

Exhibit 1 to MCEA's Comments on Riverview EAW problem by writing it off as too speculative85 or acting on incomplete information or assumptions.86 The Draft Guidance also states that “when an agency determines that the tools, methods, or data inputs necessary to quantify a proposed action’s GHG emissions are not reasonably available, or it otherwise would not be practicable, the agency should [alternatively] include a qualitative analysis. . . .”87 Again, CEQ has failed to explain what these terms mean. This provision also presents an unlikely scenario because there are many tools available for quantification,88 including CEQ’s own compilation of GHG accounting tools, methodologies, and reports that it published for use by agencies engaged in emissions quantification.89 Moreover, federal agencies reviewing actions that are likely to have significant GHG emissions impacts such as pipelines, mining activities, and transportation projects have already implemented quantification at the environmental assessment and EIS stages of NEPA review and are thus familiar with the available data and methodologies.90 Absent clarification, CEQ’s use of

85 See id. at 1230-31; Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d at 548-50 (rejecting agency’s argument that it need not consider air quality impacts of building national railroad to transport coal because the exact extent of impact was speculative). 86 WildEarth Guardians v. Bur. of Land Mgmt., 870 F.3d 1222, 1237-38 (10th Cir. 2017) (rejecting agency’s analysis of impacts from coal leasing on carbon emissions and climate change that relied on faulty economic assumption); see generally W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 493 (9th Cir. 2011) (holding that agency violated NEPA when it failed to consider important aspect of problem by relying on data from only one-third of the rangeland in dispute and evaluating impacts without complete data); Churchill County v. Norton, 276 F.3d 1060, 1072-73 (9th Cir. 2001) (stating that NEPA “emphasizes the importance of coherent and comprehensive up-front environmental analysis to ensure…that the agency will not act on incomplete information” (internal quotation marks and citations omitted)). 87 Draft Guidance, supra note 1, at 30,098 (emphases added). 88 See, e.g., U.S. Envtl. Protection Agency, EPA Detailed Comments on FERC NOI for Policy Statement on New Natural Gas Transportation Facilities 2-4 (June 21, 2018), https://elibrary.ferc.gov/idmws/file_list.asp?accession_num=20180621-5095 (listing numerous existing tools and information available to calculate upstream and downstream climate emissions associated with pipeline infrastructure). 89 NEPA.GOV, Greenhouse Gas (GHG) Accounting Tools, https://ceq.doe.gov/guidance/ghg-accounting- tools.html (last visited August 23, 2019). 90 See, e.g., Surface Transp. Bd., Draft Environmental Impact Statement for the Proposed Construction and Operation of the Tongue River Railroad Appendix F (Apr. 2015), https://www.stb.gov/decisions/readingroom.nsf/UNID/E7DE39D1F6FD4A9A85257E2A0049104D/$file/ AppF_Lifecycle+GHG.pdf (quantifying not only downstream combustion emissions of a coal-rail project, but also upstream emissions including the production of the steel and other materials for construction); Office of Surface Mining Reclamation and Enforcement, Environmental Assessment (DOI-BLM-CO- S010-2011-0074-EA), Federal Coal Lease (COC-62920) Modification and Federal Mine Permit (CO- 0106A) Revision and Renewal 76-82, 173 (Oct. 12, 2017), https://eplanning.blm.gov/epl-front- office/projects/nepa/70895/127910/155610/King_II_Lease_Mod_Final_EA_2017-1012.pdf (quantifying direct carbon dioxide emissions from equipment to operate mine and construct improvements; indirect carbon dioxide emissions from mine workers’ commutes; methane emissions from coal extraction process; indirect carbon dioxide emissions from transporting coal; and downstream carbon dioxide 15

Exhibit 1 to MCEA's Comments on Riverview EAW ambiguous language encourages agencies to avoid quantification that can and should be done. The Draft Guidance is thereby inconsistent with NEPA and CEQ’s obligation to ensure that agencies comply with the statute.91 As noted in the comments submitted in 2015 by the California Governor’s Office of Planning and Research (“OPR”) regarding the previous CEQ draft GHG guidance (referred to herein as the “2015 OPR Comments”), emissions from many projects are easily quantified using existing tools. The 2015 OPR Comments note that “[n]ational protocols for calculating greenhouse gas emissions are also readily available, such as the United States Community Protocol for Calculating Greenhouse Gas Emissions and the Local Government Operations Protocol.”92 California has long recognized that GHG quantification tools are widely available and reliable. Nearly a decade ago, during the process for amending the CEQA Guidelines to address GHG quantification, the California Natural Resources Agency noted that “quantification of GHG emissions is possible for a wide range of projects using currently available tools.”93 This is not unique to California; such tools are widely available to the federal government, in connection with federal projects, as well. For example, emission factors from construction equipment and other non-road engines have been readily available from EPA’s NONROAD model since the late 1990s, while EPA’s MOBILE6.1/6.2 model has included GHG emission factors since 2002. As OPR noted in its comments four years ago, the available tools have improved, and their use has become widespread.94 That is even more true today. C. The Draft Guidance’s Direction Regarding Cumulative Impacts Does Not Comply With NEPA

The Draft Guidance’s instruction regarding cumulative impacts analysis also conflicts with NEPA. NEPA requires a lead agency to give a “hard look” at the cumulative impacts of a project, i.e., the “impact on the environment which results from the incremental impact of the

emissions from coal combustion; quantifying total direct and estimated indirect GHG emissions from maximum production at mine relative to total U.S. and global emissions). 91 A survey conducted July 2012 through December 2014 found that of the 238 EISs surveyed, 214 (90%) contained some discussion of GHG emissions or climate change impacts, 172 (72%) discussed the GHG emissions associated with a proposed action, and 167 (70%) discussed how climate change may affect the proposed action. Jessica Wentz et al., Columbia Law School Sabin Ctr. For Climate Change Law, Survey of Climate Change Considerations In Federal Environmental Impact Statements, 2012-2014, at ii, 5, 11 (2016), http://columbiaclimatelaw.com/files/2016/06/Wentz-et-al.-2016-02-Climate-Change- Considerations-in-Federal-EIS-2012-14.pdf. 92 See Comments from the Governor’s Office of Planning and Research regarding the White House Council on Environmental Quality’s “Revised Draft Guidance on Greenhouse Gases and Climate Change” at 3 (Mar. 24, 2015) A copy of the 5 OPR Comments is attached as Exhibit 2 to this letter. See also California Air Resources Board, Local Government Operations Protocol for Greenhouse Gas Assessments, https://ww3.arb.ca.gov/cc/protocols/localgov/localgov.htm (last visited Aug. 23, 2019). 93 Cal. Natural Resources Agency, Final Statement of Reasons for Regulatory Action: Amendments to the State CEQA Guidelines Addressing Analysis and Mitigation of Greenhouse Gas Emissions Pursuant to SB 97, at 21 (Dec. 2009), http://resources.ca.gov/ceqa/docs/Final_Statement_of_Reasons.pdf. 94 2015 OPR Comments, supra note 92, at 4. 16

Exhibit 1 to MCEA's Comments on Riverview EAW action when added to other past, present, and reasonably foreseeable future actions.”95 A cumulative impact “can result from individually minor but collectively significant actions taking place over a period of time.”96 The level of analysis required for NEPA’s “hard look” is project- specific, and the analysis must be sufficient to provide a meaningful basis for an agency to compare amongst alternatives and decide whether to undertake the action in question.97 Several courts have upheld GHG cumulative impact analyses when they quantify both the project’s GHG emissions and sector-related regional emissions, and have found cumulative impact analyses to be insufficient when they do not.98 For example, in WildEarth Guardians v. Zinke, the United States District Court for the District of Columbia held that the U. S. Department of the Interior, Bureau of Land Management’s (BLM) environmental assessments for oil and gas leasing on federal land were insufficient because BLM failed to quantify the drilling-related GHG emissions from the leased parcels and failed to sufficiently compare them to regional and national emissions.99 The cumulative impacts analyses were insufficient because they did not provide “data-driven” comparisons of drilling-related GHG emissions resulting from the leases to regional and national GHG emissions.100 To satisfy NEPA, the court concluded that BLM should have quantified these comparisons and should have stated the cumulative effect of the decision with “reasonable specificity.”101 In line with these requirements, the 2016 Guidance urged agencies to take an expansive view of cumulative impacts. It admonished that a “statement that emissions from a proposed Federal action represent only a small fraction of global emissions is essentially a statement about the nature of the climate change challenge, and is not an appropriate basis for deciding whether or to what extent to consider climate change impacts under NEPA.”102 And “[a]gencies should

95 40 C.F.R. § 1508.7 (2019); Fritiofson v. Alexander, 772 F.2d 1225, 1247 (5th Cir. 1985). 96 40 C.F.R. § 1508.7. 97 See Nat. Res. Defense Council, Inc. v. Hodel, 865 F.2d 288, 299 (D.C. Cir. 1988) (EIS must analyze the combined effects of the actions in sufficient detail to be “useful to a decisionmaker in deciding whether, or how, to alter the program to lessen cumulative environmental impacts.”). 98 See, e.g., Citizens for a Healthy Cmty. v. Bur. of Land Mgmt., 49 ELR 20,044 (D. Colo. March 27, 2019) (upholding BLM’s cumulative impact analysis of GHG emissions for master development plan for unit in Colorado basin because BLM looked at statewide emissions levels from coal-fired power plant for comparative assessment, performed regional cumulative impacts analysis of future mineral development in region, and quantified emissions expected from developments on land in question); San Juan Citizens Alliance, 326 F. Supp. 3d at 1240-41, 1248 (finding cumulative impacts analysis of GHG emissions from leasing of federal lands insufficient “facile conclusion” because it made qualitative comparison between “very small” increase in GHG emissions from leasing and regional and global emissions); see also Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1180, 1216 (9th Cir. 2008); Coal. for Healthy Ports v. U.S. Coast Guard, 2015 U.S. Dist. LEXIS 159090 (S.D.N.Y. Nov. 24, 2015) (generally upholding cumulative impacts analysis of bridge project because it included “detailed, quantitative information”). 99 WildEarth Guardians, 368 F. Supp. 3d at 51, 63. 100 Id. at 77. 101 Id. 102 2016 Guidance, supra note 3, at 11. 17

Exhibit 1 to MCEA's Comments on Riverview EAW not limit themselves to calculating a proposed action’s emissions as a percentage of sector, nationwide, or global emissions in deciding whether or to what extent to consider climate change impacts under NEPA.”103 The 2016 Guidance also directed agencies to “discuss relevant approved federal, regional, state, tribal, or local plans, policies, or laws for GHG emissions reductions or climate adaption to make clear whether a proposed project’s GHG emissions are consistent with such plans or laws.”104 The Draft Guidance, by contrast, does not provide clarity on how agencies should perform cumulative impacts analyses for projects that implicate climate change, again inviting agencies to shirk their responsibilities to consider GHG effects. Instead, the Draft Guidance suggests that agencies may meet NEPA’s cumulative impact analysis requirement by comparing a project’s GHG emissions to local, regional, national, or sector-wide emissions estimates and providing a qualitative summary discussion of the effects of GHG emissions.105 But this analysis of cumulative impacts would be insufficient for many projects, especially those involving fossil fuel leasing or transportation infrastructure, because NEPA’s “hard look” requires a thorough analysis of cumulative GHG emissions and a more specific discussion of impacts and mitigation. The Draft Guidance thus ignores NEPA’s requirement to analyze a project’s cumulative effects when combined with other past, present, and reasonably foreseeable future federal actions. As it did in the 2016 Guidance, CEQ should instruct agencies to thoroughly analyze a project’s incremental impact on climate change. Specifically, CEQ should revise the Draft Guidance to instruct agencies to quantify cumulative impacts from GHG emissions, to consider a project’s consistency with plans and policies to reduce GHG emissions, and to consider mitigation measures for cumulative impacts from GHG emissions.106 D. CEQ’s Draft Guidance Improperly Supports an Unbalanced Approach to Cost-Benefit Analysis

CEQ’s Draft Guidance also encourages improper assessment of climate costs of federal agency actions. Specifically, CEQ’s Draft Guidance directs agencies that they do not need to monetize or quantify climate impacts even if they quantify employment or other socio-economic impacts of a project.107 As courts have concluded, such a one-sided approach to monetizing project impacts lacks legal or rational support.108

103 Id. 104 Id. at 28-29. 105 Draft Guidance, supra note 1, at 30,098. 106 See Sierra Club v. Clinton, 689 F. Supp. 2d 1123, 1127, 1138-39 (D. Minn. 2010) (upholding cumulative impact analysis for GHG emissions from new 326-mile pipeline to transport crude oil, in part, because it discussed mitigation measures to offset emissions). 107 Draft Guidance, supra note 3, at 30,099. 108 See Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1198 (9th Cir. 2008) (agency “cannot put a thumb on the scale by undervaluing the benefits and overvaluing the costs” in failing to analyze benefits of reducing GHG emissions); High Country Conservation Advocates v. U.S. 18

Exhibit 1 to MCEA's Comments on Riverview EAW Although NEPA does not require a federal agency to conduct a cost-benefit analysis,109 where an agency chooses to quantify the benefits of a proposed action, it must also quantify the costs of that action when a tool is available to do so.110 For GHG emissions, the “social cost of carbon” provides such a tool. The former federal Interagency Working Group on Social Cost of Greenhouse Gases (“IWG”) developed the social cost of carbon “through an interagency process committed to ensuring that the [social cost of carbon] estimates reflect the best available science and methodologies” for monetizing long-term damage caused by increased carbon dioxide emissions.111 As CEQ noted in its 2016 Guidance, the social cost of carbon is a useful, available tool during NEPA review for agencies and the public to understand the potential climate impacts of a proposed federal action.112 In a reversal from the 2016 Guidance, the Draft Guidance now rejects the social cost of carbon or any other cost metric as a tool for monetizing climate impacts under NEPA.113 It instructs agencies that they “need not weigh the effects of the various alternatives in NEPA in a monetary cost-benefit analysis using any monetized Social Cost of Carbon estimates.”114 CEQ then states that “[t]here may be some effects that are more capable of monetization or quantification, such as employment or other socio-economic impacts …. Monetization or quantification of some aspects of an agency’s analysis does not require that all effects, including potential effects of GHG emissions, be quantified.”115 The message is clear: monetize benefits, such as employment, but do not monetize the climate costs. In other words, the Draft Guidance wrongly directs agencies that they may monetize some aspects of their analysis, such as employment or other socio-economic impacts, without quantifying the costs from climate impacts of the action.116 But courts have taken agencies to task for following the one-sided approach CEQ is suggesting here—monetizing the benefits of a project while failing to use the social cost of

Forest Serv., 52 F. Supp. 3d 1174, 1195 (D. Colo. 2014) (“It is arbitrary to offer detailed projections of a project’s upside while omitting a feasible projection of the project’s costs.”). 109 40 C.F.R. § 1502.23. 110 See Columbia Basin Land Prot. Ass’n v. Schlesinger, 643 F.2d 585, 595 (9th Cir. 1981) (NEPA’s “policy of full disclosure applies equally to the economic and technological benefits of a project as to its environmental costs. If full disclosure were applied only to the environmental costs, the purposes of mandating a balancing analysis would be defeated.”); Mont. Envtl. Info. Ctr v. U.S. Office of Surface Mining, 274 F. Supp. 3d 1074, 1095–99 (D. Mont. 2017) (agency arbitrarily failed to consider costs of GHG emissions from coal combustion when agency quantified socioeconomic benefits of coal mining). 111 2016 Guidance, supra note 3, at 33 n.86; see also Interagency Working Group on Social Cost of Greenhouse Gases, Technical Support Document: Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis – Under Executive Order 12866 (Aug. 2016). 112 2016 Guidance, supra note 3, at 33 n.86 (stating that social cost of carbon “provides a harmonized, interagency metric that can give decision makers and the public useful information for their NEPA review”). 113 Draft Guidance, supra note 1, at 30,098. 114 Id. 115 Id. at 30,099. 116 Id. 19

Exhibit 1 to MCEA's Comments on Riverview EAW carbon tool to monetize the climate costs—because it impairs an agency’s ability to make an informed decision.117 In High Country, for example, the court faulted the U.S. Forest Service for refusing to use social cost of carbon estimates: “[e]ven though NEPA does not require a cost- benefit analysis, it was nonetheless arbitrary and capricious to quantify the benefits of the lease modifications and then explain that a similar analysis of the costs was impossible when such an analysis was in fact possible [using the social cost of carbon tool].”118 Nor can CEQ’s proffered rationale save its unlawful approach. In particular, CEQ dismisses the social cost of carbon on the basis that the IWG developed the tool for evaluation of regulatory actions and not for socio-economic analysis under NEPA.119 CEQ cannot reasonably dismiss this tool on the basis that it was not created for the precise purpose of aiding NEPA review. Such reasoning is nonsensical: it would allow agencies to dismiss a whole host of reports, tools, and methods—including some of the GHG accounting tools identified on CEQ’s own website—on the basis that they were not created specifically for the NEPA process,120 in violation of NEPA’s purpose of driving informed decision-making. Indeed, in High Country, the court rejected this exact argument, observing that it did not “explain why these agencies believed the protocol was inaccurate or not useful in this instance.”121 The court recognized that even if the IWG did not design the social cost of carbon specifically for the NEPA process, the tool could still provide useful information for the NEPA decision-making process, particularly where an agency decides to quantify benefits of a project. Further, even if the social cost of carbon were not an appropriate tool for the NEPA process (it is), CEQ does not—because it cannot— explain why agencies could not use a different climate impact metric. Consistent with NEPA, CEQ should revise the Draft Guidance to recommend a balanced approach that quantifies both the costs—including the social cost of carbon—and the benefits of proposed actions to ensure that federal agencies and the public have all necessary information about the potential environmental consequences of federal actions.122 In 2016, CEQ stated the social cost of carbon “provides a harmonized, interagency metric that can give decision makers and the public useful information for their NEPA review.”123 Now, three years later, CEQ appears to have changed its mind, but fails to provide a reasoned basis for this change.124

117 See Ctr. for Biological Diversity, 538 F.3d at 1198; Columbia Basin Land Prot. Ass’n, 643 F.2d at 595; Mont. Envtl. Info. Ctr., 274 F. Supp. 3d at 1095–99. 118 High Country Conservation Advocates, 52 F. Supp. 3d at 1191. 119 Draft Guidance, supra note 1, at 30,099. 120 See NEPA.GOV, Greenhouse Gas (GHG) Accounting Tools, https://ceq.doe.gov/guidance/ghg- accounting-tools.html. 121 52 F. Supp. 3d at 1192. 122 42 U.S.C. § 4331. 123 2016 Guidance, supra note 3, at 33 n.86. 124 Federal Commc’ns Comm’n v. Fox Television Stations, 556 U.S. 502, 515 (2009) (agency must supply “good reasons” for departing from prior policy). 20

Exhibit 1 to MCEA's Comments on Riverview EAW E. CEQ’s Draft Guidance Impermissibly Discourages Consideration of Required Mitigation Measures

The Draft Guidance also conflicts with NEPA by discouraging the mitigation and exploration of reasonable alternatives to reduce climate change impacts. Regarding mitigation, the Draft Guidance flatly concludes: “NEPA does not require agencies to adopt mitigation measures.”125 While it is true that NEPA does not require agencies to adopt mitigation measures, courts interpret NEPA’s “hard look” requirement as requiring agencies to evaluate mitigation measures for a project that may impact the environment.126 The Draft Guidance fails to recognize that, while agencies are not required to adopt mitigation measures, they must include a discussion of “appropriate mitigation measures not already included in the proposed action or alternative” where a proposed action may impact the environment.127 Instead, CEQ’s Draft Guidance steers federal agencies away from a thorough assessment of mitigation measures for a proposed project that may significantly impact climate change. NEPA requires federal agencies to consider possible mitigation strategies for a federal action at multiple points throughout the NEPA analysis: in defining the scope of the EIS, in discussing alternatives to the proposed action and consequences of that action, and in explaining its ultimate decision.128 Courts have held that “mere lists of mitigation measures are insufficient” to satisfy NEPA.129 Instead, courts look at whether an agency has provided “an assessment of whether the proposed mitigation measures can be effective . . . [and] whether anticipated environmental impacts can be avoided.”130 As the Supreme Court has explained, omission of a “reasonably complete discussion of possible mitigation measures” undermines the action-forcing purpose of NEPA because it would prevent agencies and the public from fully evaluating the severity of the proposed action.131 The Draft Guidance encourages federal agencies to forgo consideration of mitigation measures addressing climate change impacts of the action. The resulting EIS may not present the agency, or the public, with a comprehensive understanding of the project’s overall environmental impacts. If an agency were to ignore mitigation measures to address GHG impacts, it likely would be unable to evaluate fully the impacts of a proposed action or an alternative, and thus would fail to fulfill the purpose of NEPA. By steering agencies away from

125 Draft Guidance, supra note 1, at 30,098 (emphasis added). 126 Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F. 3d 1372, 1380 (9th Cir. 1998) (a mere listing of mitigation measures does not supply the reasoned analysis that NEPA requires). 127 40 C.F.R. § 1502.14(f) (emphasis added). 128 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989); see also 40 C.F.R. §§ 1508.25(b), 1502.14(f), 1502.16(h), 1505.2(c). 129 Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073, 1088 (9th Cir. 2013). 130 S. Fork Band Council of Western Shoshone of Nevada v. U.S. Dept. of Interior, 588 F.3d 718, 727 (9th Cir. 2009); High Sierra Hikers Ass’n v. Dept. of Interior, 848 F. Supp. 2d 1036, 1054 (N.D. Cal. 2012) (“[a]n essential component of a reasonably complete mitigation discussion is an assessment of whether the proposed mitigation measures can be effective”). 131 Robertson, 490 U.S. at 352. 21

Exhibit 1 to MCEA's Comments on Riverview EAW a comprehensive discussion of mitigation measures for a proposed agency action, the Draft Guidance undermines the action-forcing function of NEPA and, consequently, conflicts with the general purpose and requirements of NEPA. Moreover, the Draft Guidance’s suggestion that an agency need not consider potential mitigation measures could undercut the efficacy of an agency’s cost-benefit analysis regarding a particular action’s GHG emissions. The Ninth Circuit, for instance, overturned an agency’s NEPA analysis that failed to consider the monetary benefit of mitigating GHG emissions, stating that the mitigation of those emissions was “the most significant benefit” of the more stringent regulatory alternative to the agency’s proposed action.132 The Draft Guidance’s statement that NEPA does not require adoption of mitigation measures for climate change impacts is ill-advised and improper. Where a proposed project has climate change impacts, a robust analysis of mitigation measures from GHG emissions is required. CEQ should so instruct in any final guidance. F. CEQ’s Draft Guidance Should Direct Agencies to Consider Climate Adaptation and Resiliency

Increasing resiliency to a changing climate is a critically important challenge for many communities, yet the Draft Guidance does not even mention climate adaptation or resiliency. As discussed above, our States, cities, and localities are already experiencing climate change, and its effects will continue to worsen. To protect residents, infrastructure, and industries, states must adapt to address these impacts. Climate adaptation is a form of risk management that allows governments, utilities, businesses, and individuals to reduce the risk associated with a changing climate.133 Climate resiliency improves a community’s ability to weather the effects of climate change.134 Because of the monumental costs associated with the effects of climate change, many climate adaptation measures are cost-effective. As the second volume of the Assessment found, “[p]roactive adaptation initiatives—including changes to policies, business operations, capital investments, and other steps—yield benefits in excess of their costs in the near term, as well as over the long term.”135 Since the effects of climate change are not felt evenly across society, proactive adaptation measures ensure that our most vulnerable residents—including low-income

132 Center for Biological Diversity, 538 F.3d at 1199. 133 See Assessment, Volume II, supra note 9, at 1314, available at https://nca2018.globalchange.gov/downloads/NCA4_Ch28_Adaptation_Full.pdf. The U.S. Climate Resilience Toolkit defines “adaptation” as: “The process of adjusting to new (climate) conditions in order to reduce risks to valued assets.” U.S. Climate Resilience Toolkit, Glossary, https://toolkit.climate.gov/topics/built-environment/social-equity (last visited July 14, 2019). 134 The U.S. Climate Resilience Toolkit defines “resilience” as: “The capacity of a community, business, or natural environment to prevent, withstand, respond to, and recover from a disruption.” U.S. Climate Resilience Toolkit, Glossary, supra note 133. 135 Assessment, Volume II, supra note 9, at 1322. 22

Exhibit 1 to MCEA's Comments on Riverview EAW communities and communities of color—avoid bearing the brunt of the effects of climate change.136 Consideration of future adaptation and resiliency comports with NEPA’s mandates. As discussed above, NEPA and its implementing regulations require consideration of a changing climate because when preparing an EIS, agencies must describe the affected environment, including by projecting into the future in order to analyze an action’s environmental impacts and compare reasonable alternatives.137 Because the climate is changing rapidly, the projections into the future (the future environment with the action, without the action, and reasonable alternatives) will often need to factor in the effects of climate change, including the ways a changing climate may alter the action. Accordingly, numerous courts have held that agencies acted arbitrarily and capriciously by failing to consider future conditions when analyzing the action’s environmental impacts.138 The 2016 Guidance thus properly included a detailed discussion of how agencies must account for the impacts of climate change during NEPA reviews.139 The 2016 Guidance directs agencies to consider “the ways in which a changing climate may impact the proposed action and any alternative actions . . . .”140 Under the 2016 Guidance, agencies should describe the projected future state of the environment (i.e., the no action alternative) based on “authoritative climate change reports” and look at the expected life of the proposed action and its effects.141 Agencies should consider how climate change makes a resource, ecosystem, or human community susceptible to environmental impacts. As the 2016 Guidance notes, such considerations fall “squarely within the scope of NEPA.”142 It directs that this analysis should “inform decisions on whether to proceed with, and how to design, the proposed action to

136 See U.S. Climate Resilience Toolkit, Social Equity, https://toolkit.climate.gov/topics/built- environment/social-equity (last visited July 14, 2019). 137 40 C.F.R. § 1502.15 (2019) (defining affected environment as “the environment of the area(s) to be affected or created by the alternatives under consideration”); see Jessica Wentz, Planning for the Effects of Climate Change on Natural Resources, 47 ENVTL.L.REV. 10,220, 10,222-23 (2017) (describing how NEPA and regulations require incorporation of climate change into analysis of action’s environmental impacts). 138 See, e.g., California ex. Rel. Imperial Country Air Pollution Control Dist. v. U.S. Dep’t of the Interior, 767 F.3d 781 (9th Cir. 2014) (upholding EIS that analyzed effects of water transfer agreements on Salton Sea in southern California, in part, because it properly incorporated future conditions when establishing “no action” alternative); American Canoe Ass’n v. White, 277 F. Supp. 2d 1244 (N.D. Ala. 2003) (cumulative impact analysis for dam project was insufficient because it failed to consider future conditions of project); AquAlliance v. U.S. Bureau of Reclamation, 287 F. Supp. 3d 969, 1032 (E.D. Cal. 2018) (NEPA cumulative impact analysis in EIS analyzing water transfer program was insufficient because it failed to incorporate available information about likely change to future conditions due to climate change). 139 2016 Guidance, supra note 3, at 20-27. 140 Id. at 9. 141 Id. at 20-21. 142 Id. at 21. 23

Exhibit 1 to MCEA's Comments on Riverview EAW eliminate or mitigate impacts . . . .”143 The 2016 Guidance provides useful direction on how, under NEPA, agencies should address the effects of climate change on the project and its impacts. In sharp contrast to the 2016 Guidance, and despite the importance of climate adaptation and climate resiliency in project planning and environmental analysis, the Draft Guidance is virtually silent on the subject. In terms of analyzing the effects of a changing climate on the proposed action and the action’s impacts, the Draft Guidance only ambiguously advises that, “[w]hen relevant, agencies should consider whether the proposed action would be affected by foreseeable changes to the affected environment under a reasonable scenario”—again without defining those terms.144 The States thus urge CEQ to readopt the 2016 Guidance’s discussion of climate impacts to account for adaptation and resiliency efforts. Moreover, providing guidance directing federal agencies to address climate adaptation and resiliency in NEPA reviews would aid coordination among federal approval and planning processes and, as detailed below, with state and local agencies. CEQ regulations encourage agencies to integrate the NEPA process with other processes at the earliest possible time.145 CEQ strongly encourages coordination of NEPA review with other federal approvals and planning processes, and with state and local agencies.146 Since many federal agencies, state agencies, and local partners have laws, regulations, and policies that require them to address climate risk during planning and project development, robust NEPA guidance directing similar considerations will encourage consistency and ease such coordination. For example, U.S. Army Corps of Engineers policy requires it to integrate “climate change preparedness and resilience planning and actions in all activities,” and the National Park Service’s Coastal Adaptation Strategies Handbook provides policy and decision-making guidelines for addressing climate change impacts on vulnerable park resources.147 The States accordingly request that any final guidance that CEQ issues on consideration of GHG emissions in NEPA reviews robustly addresses climate adaptation and resiliency.

143 Id. 144 Draft Guidance, supra note 1, at 30,098. 145 40 C.F.R. § 1501.2. 146 See Council on Environmental Quality, Collaboration in NEPA (2007), https://www.energy.gov/sites/prod/files/CEQ_Collaboration_in_NEPA_10-2007.pdf; Council on Environmental Quality, A Citizen’s Guide to the NEPA (2007), https://ceq.doe.gov/docs/get- involved/Citizens_Guide_Dec07.pdf (“permitting and NEPA processes should be integrated or run concurrently in order to have an effective and efficient decision-making process”). 147 U.S. Army Corps of Engineers, Adaptation Policy Statement (2014), https://cdm16021.contentdm.oclc.org/utils/getfile/collection/p266001coll1/id/5255; National Park Service, Coastal Adaptation Handbook (2016), https://www.nps.gov/subjects/climatechange/upload/CASH_FINAL_Document_111016.pdf. 24

Exhibit 1 to MCEA's Comments on Riverview EAW V. CEQ’S DRAFT GUIDANCE SHOULD ENSURE CONSISTENCY BETWEEN NEPA AND STATE ENVIRONMENTAL ANALYSES

The States have a wealth of experience implementing state environmental review statutes and ensuring coordination between NEPA and its state analogues. In developing the Draft Guidance, CEQ should consider ways to ensure that this coordination is as streamlined and smooth as possible. Moreover, CEQ should look to our States for guidance on quantification of GHG emissions and assessment of climate impacts. First, coordination between state and federal environmental reviews is a critical component of planning for major projects. CEQ should revise the Draft Guidance to encourage agencies to coordinate analysis under NEPA with state environmental reviews that require analysis and mitigation of climate change impacts, such as the California Environmental Quality Act. NEPA coordination with state environmental review laws would thus be improved by robust guidance encouraging federal agencies to likewise incorporate climate resiliency and adaptation in NEPA review. Federal and state environmental review processes can be coordinated for projects requiring both federal and state action.148 The regulations implementing New York State’s environmental review law require an environmental impact statement to identify and discuss measures to avoid or reduce both an action’s impacts on climate change and associated impacts due to the effects of climate change such as sea level rise and flooding.149 The Washington State Department of Transportation (“WSDOT”) requires all WSDOT projects subject to NEPA and state environmental review to follow its Guidance - Project-Level Greenhouse Gas Evaluations under NEPA and SEPA and directs projects to consider climate change impacts and ways to improve the resilience of transportation assets.150 Given these requirements, NEPA and state-level analysis can best be coordinated if NEPA reviews also address these important considerations. Second, CEQ should look to states for guidance on quantitative GHG and climate change analyses under NEPA. As discussed in Section IV.B above, California agencies have been quantifying GHG emissions and assessing climate change impacts associated with projects since at least 2006. As noted in California’s 2015 OPR Comments submitted regarding the previous CEQ draft GHG guidance, emissions from many projects are easily quantified using existing

148 See, e.g., 6 N.Y.C.R.R. § 617.15 (as long as NEPA EIS is sufficient for findings required, state and local agencies may rely on NEPA EIS to meet their requirements under New York State environmental review); Mass. Gen. Laws. c. 30, § 62G (allowing submission of NEPA EIS in lieu of state environmental impact report); 301 Code Mass. Regs. § 11.09(c) (authorizing special review procedures including coordination with other permitting agencies and consolidation of federal and state review processes). 149 6 N.Y.C.R.R. § 617.9(b)(5)(iii)(i). 150 Washington State Dep’t of Transportation, WSDOT Guidance - Project-Level Greenhouse Gas Evaluations under NEPA and SEPA (2018); WSDOT, Guidance for NEPA and SEPA Project-Level Climate Change Evolutions (Jan. 2017 update), https://www.wsdot.wa.gov/environment/technical/disciplines/air-quality-noise-energy/addressing- climate-change & https://www.wsdot.wa.gov/sites/default/files/2019/02/08/ENV-ANE- GHGGuidance.pdf. 25

Exhibit 1 to MCEA's Comments on Riverview EAW tools. OPR noted that “quantification of GHG emissions is possible for a wide range of projects using currently available tools.”151 This is not unique to California; such tools are widely available to the federal government, in connection with federal projects, as well. Indeed, the available tools have improved, and their use has become widespread.152 States also provide useful guideposts in considering climate impacts generally. For example, Massachusetts law requires that for all administrative approvals and decisions, the agency, department, board, commission, or authority “consider reasonably foreseeable climate change impacts, including additional GHG emissions, and effects, such as predicted sea level rise.”153 In New York, state law requires consideration of future physical climate risk due to sea level rise, storm surge and flooding for a number of specified permitting and funding decisions.154 California’s Sea Level Rise guidance provides methodology for state and local governments to analyze and assess the risks associated with sea level rise, and to incorporate sea level rise into their planning, permitting, and investment decisions.155

VI. CEQ SHOULD WITHDRAW THE DRAFT GUIDANCE AND ADOPT AN UPDATED VERSION OF THE 2016 GUIDANCE

For the reasons articulated above, CEQ’s Draft Guidance inadequately advises federal agencies on the assessment of GHG emissions and the climate change impacts of projects during NEPA review. The Draft Guidance avoids addressing climate change and its impacts, fails to clarify the proper analysis of indirect climate change effects, confuses and weakens GHG quantification requirements, minimizes the consideration of cumulative impacts and other components of a proper NEPA analysis, improperly supports an unbalanced approach to cost- benefit analysis, discourages consideration of mitigation and alternatives to reduce climate impacts, and fails even to mention consideration of measures to improve climate adaptation and resiliency. The result is a document that conflicts with the statutory requirements of NEPA and does not further NEPA’s purposes of promoting informed decision-making and identifying environmental impacts. Instead, the Draft Guidance largely identifies opportunities for—and indeed appears to encourage—agencies to avoid adequately assessing GHG emissions and climate impacts of proposed projects. Rather than pursue this inadequate and unlawful approach to analyzing GHG emissions and climate impacts, CEQ should withdraw its Draft Guidance. The States urge CEQ instead to

151 Cal. Natural Resources Agency, Final Statement of Reasons for Regulatory Action: Amendments to the State CEQA Guidelines Addressing Analysis and Mitigation of Greenhouse Gas Emissions Pursuant to SB97, at 21 (Dec. 2009). 152 2015 OPR Comments, supra note 92, at 4. 153 State of Massachusetts, 2012: Mass. Gen. Laws c. 30, § 61. 154 See New York State Department of Environmental Conservation, Community Risk and Resiliency Act (CRRA) Provisions, https://www.dec.ny.gov/energy/104113.html (last visited July 15, 2019). 155 Cal. Natural Resources Agency, State of California Sea Level Rise Guidance (2018), http://www.opc.ca.gov/webmaster/ftp/pdf/agenda_items/20180314/Item3_Exhibit- A_OPC_SLR_Guidance-rd3.pdf. 26

Exhibit 1 to MCEA's Comments on Riverview EAW adopt an updated version of the 2016 Guidance that fully complies with NEPA and current caselaw and acknowledges and reflects the uniquely catastrophic threat of climate change. The 2016 Guidance reflects years of analysis as well as thoughtful recommendations offered by numerous stakeholders, and relies on longstanding NEPA principles.156 Ensuring robust analysis of greenhouse gas emissions and climate impacts of federal projects is essential for informing decisionmakers and the public of the potential environmental impacts. NEPA demands this transparent and comprehensive process.

156 2016 Guidance, supra note 3, at 2 & n.4. 27

Exhibit 1 to MCEA's Comments on Riverview EAW If we can provide additional information that would be helpful in considering these comments, or if you wish to discuss with us any issue raised above, please do not hesitate to contact the undersigned.

Respectfully submitted,

Dated: August 26, 2019

FOR THE STATE OF CALIFORNIA FOR THE STATE OF COLORADO

XAVIER BECERRA PHILIP J. WEISER Attorney General Attorney General

By: /s/ Sarah E. Morrison_____ By: /s/ Amy W. Beatie

SARAH E. MORRISON AMY W. BEATIE Supervising Deputy Attorney General Deputy Attorney General JAMIE JEFFERSON Natural Resources and Environment Section JULIA K. FORGIE Colorado Attorney General’s Office Deputy Attorneys General 1300 Broadway, 7th Floor California Department of Justice Denver, Colorado 80203 300 South Spring Street, Suite 1702 720-508-6295 Los Angeles, CA 90013 [email protected] Tel. (213) 269-6328 [email protected] [email protected] [email protected]

Exhibit 1 to MCEA's Comments on Riverview EAW FOR THE STATE OF CONNECTICUT FOR THE STATE OF DELAWARE

WILLIAM TONG KATHLEEN JENNINGS Attorney General Attorney General

By: /s/ Robert Snook_____ By: /s/ Jameson Tweedie______

MATTHEW I. LEVINE DEVERA SCOTT ROBERT SNOOK Deputy Attorney General Assistant Attorneys General JAMESON TWEEDIE Office of the Attorney General Special Assistant Deputy Attorney General P.O. Box 120 Department of Justice 55 Elm Street 391 Lukens Drive Hartford, CT 06141-0120 New Castle, DE 19720 Tel: (860) 808-5250 Telephone: (302) 395-2521 [email protected] [email protected] [email protected]

FOR THE DISTRICT OF COLUMBIA FOR THE STATE OF ILLINOIS

KARL A. RACINE KWAME RAOUL Attorney General Attorney General

By: /s/ Sarah Kogel Smucker ____ By: /s/ Jason E. James__

SARAH KOGEL-SMUCKER JASON E. JAMES Special Assistant Attorney General Assistant Attorney General Office of the Attorney General MATTHEW J. DUNN 441 4th Street, N.W., Suite 630 South Chief, Environmental Enf./Asbestos Litig. Washington, D.C. 20001 Div. (202) 724-9727 Office of the Attorney General [email protected] Environmental Bureau 69 W. Washington St., 18th Floor Chicago, IL 60602 (312) 814-0660 [email protected]

Exhibit 1 to MCEA's Comments on Riverview EAW FOR THE STATE OF MAINE FOR THE STATE OF MARYLAND

AARON M. FREY BRIAN E. FROSH Attorney General Attorney General

By: /s/ Laura E. Jensen____ By: /s/ Steven J. Goldstein ____

LAURA E. JENSEN STEVEN J. GOLDSTEIN Assistant Attorney General Special Assistant Attorney General Office of the Maine Attorney General Office of the Attorney General 6 State House Station 200 Saint Paul Place, 20th Floor Augusta, ME 04333 Baltimore, Maryland 21202 (207) 626-8868 (410) 576-6414 [email protected] [email protected]

FOR THE COMMONWEALTH OF FOR THE STATE OF MINNESOTA MASSACHUSETTS KEITH ELLISON MAURA HEALEY Attorney General Attorney General

By: /s/ Christina Brown By: /s/ Turner Smith ____ CHRISTINA M. BROWN CHRISTOPHE COURCHESNE Assistant Attorney General Assistant Attorney General and Chief 445 Minnesota Street, Suite 900 TURNER SMITH St. Paul, MN 55105 Assistant Attorney General (651) 757-1471 Office of the Attorney General [email protected] Environmental Protection Div. One Ashburton Place, 18th Floor Boston, MA 02108 (617) 727-2200 [email protected]

Exhibit 1 to MCEA's Comments on Riverview EAW FOR THE STATE OF NEW JERSEY FOR THE STATE OF NEW MEXICO

GURBIR S. GREWAL HECTOR H. BALDERAS Attorney General Attorney General

By: /s/ Aaron A. Love _ By: /s/ Anne E. Minard

AARON A. LOVE ANNE MINARD Deputy Attorney General Special Assistant Attorney General New Jersey Division of Law BILL GRANTHAM R.J. Hughes Justice Complex Assistant Attorney General 25 Market Street, PO Box 093 State of New Mexico Office of the Attorney Trenton, NJ 08625-0093 General (609) 376-2762 Consumer & Environmental Protection [email protected] Division 408 Galisteo Street Santa Fe, NM 87501 505-490-4045 505-717-3520 [email protected] [email protected]

FOR THE STATE OF NEW YORK FOR THE STATE OF NORTH CAROLINA

LETITIA JAMES JOSHUA H. STEIN Attorney General Attorney General

By: /s/ Claiborne Walthall By: /s/ Asher Spiller

MICHAEL J. MYERS ASHER SPILLER Senior Counsel Assistant Attorney General CLAIBORNE E. WALTHALL North Carolina Department of Justice Assistant Attorney General 114 W. Edenton Street Environmental Protection Bureau Raleigh, NC 27603 New York State Attorney General (919) 716-6977 The Capitol [email protected] Albany, NY 12224 (518) 776-2380 [email protected]

Exhibit 1 to MCEA's Comments on Riverview EAW FOR THE STATE OF OREGON FOR THE STATE OF PENNSYLVANIA

ELLEN F. ROSENBLUM JOSH SHAPIRO Attorney General Attorney General

By: /s/ Paul Garrahan By: /s/ Aimee D. Thomson

PAUL GARRAHAN AIMEE D. THOMSON Attorney-in-Charge Deputy Attorney General STEVE NOVICK ANN R. JOHNSTON Special Assistant Attorney General Senior Deputy Attorney General Natural Resources Section Pennsylvania Office of Attorney General Oregon Department of Justice 1600 Arch St., Suite 300 1162 Court Street NE Philadelphia, PA 19103 Salem, OR 97301-4096 Tel. (267) 940-6696 (503) 947-4593 [email protected] [email protected] [email protected]

FOR THE STATE OF RHODE ISLAND FOR THE STATE OF VERMONT

PETER F. NERONHA THOMAS J. DONOVAN, JR. Attorney General Attorney General

By: /s/ Alison B. Hoffman____ By: /s/ Nicholas F. Persampieri____

ALISON B. HOFFMAN NICHOLAS F. PERSAMPIERI Special Assistant Attorney General Assistant Attorney General Office of the Attorney General Office of the Attorney General 150 South Main Street 109 State Street Providence, RI 02903 Montpelier, VT 05609 (401) 274-4400 (802) 828-3186 [email protected] [email protected]

Exhibit 1 to MCEA's Comments on Riverview EAW FOR THE STATE OF WASHINGTON

ROBERT W. FERGUSON Attorney General

By: /s/ Aurora R. Janke____

WILLIAM R. SHERMAN Assistant Attorney General AURORA R. JANKE Special Assistant Attorney General Counsel for Environmental Protection 800 5th Ave Suite 2000, TB-14 Seattle, WA 98104-3188 (206) 442-4485 [email protected] [email protected]

Exhibit 1 to MCEA's Comments on Riverview EAW

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Exhibit 2 to MCEA's Comments on Riverview EAW ůĞŵĞŶƚƐŽĨĂŶĞĨĨĞĐƚŝǀĞĐůŝŵĂƚĞĐŚĂŶŐĞĂƐƐĞƐƐŵĞŶƚ ZůŝŵĂƚĞdĞĐŚŶŝĐĂůdĞĂŵŵĞŵďĞƌƐƉƌŽƉŽƐĞƚŚĞĨŽůůŽǁŝŶŐĞůĞŵĞŶƚƐ͕ŽƌŐƵŝĚŝŶŐƉƌŝŶĐŝƉůĞƐ͕ĨŽƌ ĐŽŶƐŝĚĞƌĂƚŝŽŶĂŶĚĐŽŶƚĞǆƚǁŚĞŶĞǀĂůƵĂƚŝŶŐƚŚĞƉƌŽƉŽƐĞĚĚƌĂĨƚƐƚƌĂƚĞŐŝĞƐ͘

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ƌĂĨƚ^ƚƌĂƚĞŐŝĞƐ

ϭ͘ /ĚĞŶƚŝĨŝĐĂƚŝŽŶŽĨĐůŝŵĂƚĞĐŚĂŶŐĞŝŶĨŽƌŵĂƚŝŽŶĂŶĚĂƐƐĞƐƐŵĞŶƚƌĞƋƵŝƌĞŵĞŶƚƐ ƵƌƌĞŶƚƌƵůĞƐĂƌĞƐƵĨĨŝĐŝĞŶƚůǇĨůĞǆŝďůĞƚŽĂůůŽǁĨŽƌĂĚĚŝƚŝŽŶĂůĐůŝŵĂƚĞͲƌĞůĂƚĞĚŝŶĨŽƌŵĂƚŝŽŶ͘ ,ŽǁĞǀĞƌ͕ĐŚĂŶŐĞƐƚŽƚŚĞƐƚĂŶĚĂƌĚtĨŽƌŵǁŝůůƌĞƋƵŝƌĞŽĂƌĚŚĂŝƌĂƉƉƌŽǀĂůĂŶĚĐŚĂŶŐĞƐƚŽ ĂŶǇĂůƚĞƌŶĂƚŝǀĞtĨŽƌŵƐǁŝůůƌĞƋƵŝƌĞĨƵůůŽĂƌĚĂƉƉƌŽǀĂů͘ ^ƚƌĂƚĞŐŝĞƐĨŽƌŝĚĞŶƚŝĨŝĐĂƚŝŽŶŽĨĐůŝŵĂƚĞĐŚĂŶŐĞŝŶĨŽƌŵĂƚŝŽŶĂŶĚĂƐƐĞƐƐŵĞŶƚ ƌĞƋƵŝƌĞŵĞŶƚƐ ͘ /ŶĐůƵĚĞĂŶŝŶǀĞŶƚŽƌǇŽĨƉƌŽũĞĐƚ','ĞŵŝƐƐŝŽŶƐŽƵƌĐĞƐĂŶĚĚĞĨŝŶĞǁŚĞŶŝƚŝƐ ĂƉƉƌŽƉƌŝĂƚĞƚŽŝŶĐůƵĚĞƚŚŝƐŝŶĨŽƌŵĂƚŝŽŶ ͘ ZĞƋƵŝƌĞĂ','ĞŵŝƐƐŝŽŶƐƋƵĂŶƚŝĨŝĐĂƚŝŽŶĂŶĚĚĞĨŝŶĞǁŚĞŶŝƚŝƐĂƉƉƌŽƉƌŝĂƚĞƚŽŝŶĐůƵĚĞ ƚŚŝƐŝŶĨŽƌŵĂƚŝŽŶ ͘ ĞĨŝŶĞƚŚĞƚŝŵĞĨƌĂŵĞĨŽƌĐĂůĐƵůĂƚŝŶŐ','ĞŵŝƐƐŝŽŶƐ;Ğ͘Ő͘ĂŶŶƵĂůĞŵŝƐƐŝŽŶƐ͕ůŝĨĞƚŝŵĞ ĞŵŝƐƐŝŽŶƐͿ ͘ ĞĨŝŶĞƚŚĞƐĐŽƉĞŽĨ','ĞŵŝƐƐŝŽŶƐƚŽŝŶĐůƵĚĞ;Ğ͘Ő͘ĚŝƌĞĐƚ͕ŝŶĚŝƌĞĐƚĞŵŝƐƐŝŽŶƐ͕ůŝĨĞ ĐǇĐůĞͿ ͘ ZĞƋƵŝƌĞĂĚŝƐĐƵƐƐŝŽŶĂŶĚƋƵĂŶƚŝĨŝĐĂƚŝŽŶŽĨ','ĞŵŝƐƐŝŽŶƐƌĞĚƵĐƚŝŽŶƐĨƌŽŵĂŶǇ ƉƌŽƉŽƐĞĚŵŝƚŝŐĂƚŝŽŶ͕ĂŶĚĚĞĨŝŶĞǁŚĞŶŝƚŝƐĂƉƉƌŽƉƌŝĂƚĞƚŽŝŶĐůƵĚĞƚŚŝƐŝŶĨŽƌŵĂƚŝŽŶ &͘ ƌĞĂƚĞĂĚĞŵŝŶŝŵŝƐ','ĞŵŝƐƐŝŽŶƚŚƌĞƐŚŽůĚ͕ďĞůŽǁǁŚŝĐŚŶŽ','ĞŵŝƐƐŝŽŶƐ ƋƵĂŶƚŝĨŝĐĂƚŝŽŶǁŽƵůĚďĞƌĞƋƵŝƌĞĚ '͘ ZĞƋƵŝƌĞĂĚŝƐĐƵƐƐŝŽŶŽĨŚŽǁĐůŝŵĂƚĞĐŚĂŶŐĞŝŵƉĂĐƚƐƚŽĂƉƌŽƉŽƐĞĚƉƌŽũĞĐƚŵĂǇ ĐƌĞĂƚĞĞŶǀŝƌŽŶŵĞŶƚĂůŝŵƉĂĐƚƐ ,͘ ZĞƋƵŝƌĞĂĚŝƐĐƵƐƐŝŽŶŽĨŚŽǁƚŚĞƉƌŽƉŽƐĞĚƉƌŽũĞĐƚŵĂǇǁŽƌƐĞŶƉƌŽďůĞŵƐĂůƌĞĂĚǇ ĂĐĐĞŶƚƵĂƚĞĚďǇĐůŝŵĂƚĞĐŚĂŶŐĞ;Ğ͘Ő͘ǁŝƚŚƚŚĞĂĚĚŝƚŝŽŶŽĨŝŵƉĞƌǀŝŽƵƐƐƵƌĨĂĐĞͿ /͘ ZĞƋƵŝƌĞĂĚŝƐĐƵƐƐŝŽŶŽĨŚŽǁƚŚĞƉƌŽƉŽƐĞĚƉƌŽũĞĐƚǁŝůůďĞŵŽĚŝĨŝĞĚƚŽĂĚĚƌĞƐƐƚŚĞ ĂďŽǀĞĐŽŶƐŝĚĞƌĂƚŝŽŶƐ

Exhibit 2 to MCEA's Comments on Riverview EAW Ϯ͘ ĞĐŝƐŝŽŶĐƌŝƚĞƌŝĂĨŽƌĂƐƐĞƐƐŝŶŐƉŽƚĞŶƚŝĂůĐůŝŵĂƚĞĞĨĨĞĐƚƐ DŝŶŶĞƐŽƚĂZƵůĞƐĐŚĂƉƚĞƌϰϰϭϬ͘ϭϳϬϬƐƉĞĐŝĨǇĐƌŝƚĞƌŝĂƚŚĂƚŵƵƐƚďĞĐŽŶƐŝĚĞƌĞĚͬĂƉƉůŝĞĚďǇĂŶZ'h ŝŶĚĞĐŝĚŝŶŐǁŚĞƚŚĞƌĂƉƌŽũĞĐƚŚĂƐƚŚĞƉŽƚĞŶƚŝĂůĨŽƌƐŝŐŶŝĨŝĐĂŶƚĞŶǀŝƌŽŶŵĞŶƚĂůĞĨĨĞĐƚƐ͖ƌĞƐƵůƚŝŶŐŝŶ ƚŚĞĚĞĐŝƐŝŽŶĨŽƌǁŚĞƚŚĞƌƚŽƌĞƋƵŝƌĞĂŶt;ĂƐĂƌĞƐƵůƚŽĨĂƉĞƚŝƚŝŽŶͿŽƌĂŶ/^;ĂƐĂƌĞƐƵůƚŽĨĂŶ tͿ͘/ŶƐƵŵŵĂƌǇ͕ƚŚĞĐƌŝƚĞƌŝĂŝŶĐůƵĚĞ͗ x dǇƉĞ͕ĞǆƚĞŶƚ͕ĂŶĚƌĞǀĞƌƐŝďŝůŝƚǇŽĨĞŶǀŝƌŽŶŵĞŶƚĂůĞĨĨĞĐƚƐ x ƵŵƵůĂƚŝǀĞƉŽƚĞŶƚŝĂůĞĨĨĞĐƚƐ x dŚĞĞǆƚĞŶƚƚŽǁŚŝĐŚƚŚĞĞŶǀŝƌŽŶŵĞŶƚĂůĞĨĨĞĐƚƐĂƌĞƐƵďũĞĐƚƚŽŵŝƚŝŐĂƚŝŽŶ x dŚĞĞǆƚĞŶƚƚŚĂƚĞŶǀŝƌŽŶŵĞŶƚĂůĞĨĨĞĐƚƐĐĂŶďĞĂŶƚŝĐŝƉĂƚĞĚĂŶĚĐŽŶƚƌŽůůĞĚ

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Exhibit 2 to MCEA's Comments on Riverview EAW 'ůŽƐƐĂƌǇŽĨdĞƌŵƐ͕ĂƐƚŚĞǇĂƉƉůǇƚŽƚŚĞDŝŶŶĞƐŽƚĂŶǀŝƌŽŶŵĞŶƚĂůZĞǀŝĞǁWƌŽŐƌĂŵ

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Exhibit 2 to MCEA's Comments on Riverview EAW

ŶǀŝƌŽŶŵĞŶƚĂůĨĨĞĐƚƐ ͞ŶǀŝƌŽŶŵĞŶƚĂůĨĨĞĐƚƐŵĞĂŶƐĂŶĂƉƉƌĞĐŝĂďůĞĂŶĚƐŝŐŶŝĨŝĐĂŶƚŝŵƉĂĐƚ͕ǁŚĞƚŚĞƌŝŵŵĞĚŝĂƚĞŽƌĚĞůĂǇĞĚŽŶ ĂŶǇĐŽŵƉŽŶĞŶƚŽĨƚŚĞĞŶǀŝƌŽŶŵĞŶƚ͘͟ϭϵϳϰ^ƚĂƚĞŵĞŶƚŽĨEĞĞĚĂŶĚZĞĂƐŽŶĂďůĞŶĞƐƐĨŽƌDŝŶŶĞƐŽƚĂZƵůĞƐ ŚĂƉƚĞƌϰϰϭϬ͘

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Exhibit 2 to MCEA's Comments on Riverview EAW dŚĂŶŬǇŽƵƚŽĞǀĞƌǇŽŶĞƚŚĂƚĂƚƚĞŶĚĞĚŶǀŝƌŽŶŵĞŶƚĂůZĞǀŝĞǁĂŶĚůŝŵĂƚĞ>ŝƐƚĞŶŝŶŐ^ĞƐƐŝŽŶŚĞůĚŽŶ ĞĐĞŵďĞƌϭϴ͕ϮϬϭϵ͘dŚĞĨŽůůŽǁŝŶŐĂƌĞŶŽƚĞƐƚĂŬĞŶĚƵƌŝŶŐƚŚĞ>ŝƐƚĞŶŝŶŐ^ĞƐƐŝŽŶ͘dŚĞƐĞĐŽŵŵĞŶƚƐǁĞƌĞ ƐŚĂƌĞĚǁŝƚŚŶǀŝƌŽŶŵĞŶƚĂůYƵĂůŝƚǇŽĂƌĚŵĞŵďĞƌƐĂŶĚƚŚĞŶǀŝƌŽŶŵĞŶƚĂůZĞǀŝĞǁůŝŵĂƚĞdĞĐŚŶŝĐĂů dĞĂŵ͕ĨŽƌĐŽŶƐŝĚĞƌĂƚŝŽŶĂƐƚŚĞǇǁŽƌŬƚŽŝĚĞŶƚŝĨǇŶĞĞĚĞĚĐŚĂŶŐĞƐƚŽƚŚĞDŝŶŶĞƐŽƚĂŶǀŝƌŽŶŵĞŶƚĂů ZĞǀŝĞǁWƌŽŐƌĂŵ͘ ZĞĐŽƌĚŝŶŐĨƌŽŵƚŚĞ>ŝƐƚĞŶŝŶŐ^ĞƐƐŝŽŶ͗ https://www.eqb.state.mn.us/content/environmental-review- implementation-subcommittee-eris# භ ŽŶĐĞƌŶĞĚĂďŽƵƚǁŚĞƚŚĞƌƚŚĞƌĞŝƐĂŶƵŶĚĞƌƐƚĂŶĚŝŶŐĂŵŽŶŐĂŐĞŶĐŝĞƐŽŶƚŚĞƵƌŐĞŶĐǇŽĨƚŚĞ ĐůŝŵĂƚĞĐŚĂŶŐĞŝƐƐƵĞ͗ ӑ &ĂŝůŝŶŐĂƐĂƐƚĂƚĞƚŽƉƌŽƚĞĐƚŽƵƌĐŝƚŝǌĞŶƐĂŶĚƚŚĞĞŶǀŝƌŽŶŵĞŶƚ͘ ӑ tĞŵĂǇŶŽƚƵŶĚĞƌƐƚĂŶĚƚŚĞƵƌŐĞŶĐǇƵŶƚŝůŝƚŝƐƚŽŽůĂƚĞ͘ ӑ ĂŶŶŽƚĂĨĨŽƌĚƚŽƐƉĞŶĚĂĐŽƵƉůĞǇĞĂƌƐŝŶƌƵůĞŵĂŬŝŶŐ͘tĞĂƌĞůŽŽŬŝŶŐĂƚŽƵƌǀĞƌǇ ƐƵƌǀŝǀĂů͘ ӑ ůŝŵĂƚĞĂĐƚŝǀŝƐƚƐĂƌĞĨŽƌĐĞĚƚŽůĂƐƚƌĞƐŽƌƚĂĐƚŝŽŶƐďĞĐĂƵƐĞŽĨŝŶĂĐƚŝŽŶďǇŐŽǀĞƌŶŵĞŶƚ͘ ӑ DŝŶŶĞƐŽƚĂŝƐĂƉƌŽŐƌĞƐƐŝǀĞůĞĂĚŝŶŐƐƚĂƚĞ͘ භ ĞĞƉůǇĐŽŶĐĞƌŶĞĚĂďŽƵƚƚŚĞŝŵƉĂĐƚƐ;ŚĞĂůƚŚĂŶĚĞŶǀŝƌŽŶŵĞŶƚĂůͿŽĨĐůŝŵĂƚĞĐŚĂŶŐĞ͘,ĞĂůƚŚ ŝŵƉůŝĐĂƚŝŽŶƐŽĨĐůŝŵĂƚĞĐŚĂŶŐĞ͗ ӑ ^ĞǀĞƌĞƐƚŽƌŵƐĂŶĚĨůŽŽĚƐ ӑ sĞĐƚŽƌͲďŽƌŶĞĂŶĚǁĂƚĞƌďŽƌŶĞŝůůŶĞƐƐĞƐ ӑ &ŝƌĞƐͲŚĞĂůƚŚŝŵƉĂĐƚƐ ӑ ,ŝŐŚĞƌƚĞŵƉƐͲŚĞĂƚƌĞůĂƚĞĚŝůůŶĞƐƐĞƐ ӑ DŽƌĞŝŶƚĞŶƐĞŚĞĂƚǁĂǀĞƐ ӑ >ŽŶŐĞƌƉŽůůĞŶƐĞĂƐŽŶƐͲĂůůĞƌŐŝĞƐ භ ZĞĐŽŵŵĞŶĚĂƚŝŽŶƐ͗ ӑ WƌŝŵĂƌǇŐŽĂůƐŽĨĂůůƐƚĂƚĞĂŐĞŶĐŝĞƐ͗hƌŐĞŶƚƌĞĚƵĐƚŝŽŶŽĨĐůŝŵĂƚĞ','Ɛ ӑ ůůƉƌŽũĞĐƚƐƐŚŽƵůĚŚĂǀĞŶĞƵƚƌĂůƉůĂŶ ӑ ZƌĞǀŝĞǁŽĨƉƌŽũĞĐƚƐŶĞĞĚƚŽŝŶĐůƵĚĞŚƵŵĂŶŚĞĂůƚŚ ӑ hƉƐƚƌĞĂŵĂŶĚĚŽǁŶƐƚƌĞĂŵĂŶĂůǇƐŝƐŽĨŵĞƚŚĂŶĞĞŵŝƐƐŝŽŶƐĨŽƌĞǀĞƌǇƉƌŽũĞĐƚ ӑ ĂƌďŽŶƐĞƋƵĞƐƚƌĂƚŝŽŶĐŽŶƐŝĚĞƌĞĚŝŶƉƌŽũĞĐƚƐ͕ĂŶĚƉƌŽŐƌĂŵƐƐƚĂƌƚĞĚ භ ŝĨĨĞƌĞŶƚƚŽƉŝĐƐƚŽďĞĐŽŶƐŝĚĞƌĞĚƵŶĚĞƌZ͗ ӑůŝŵĂƚĞĐŚĂŶŐĞ ӑ ŶǀŝƌŽŶŵĞŶƚĂůũƵƐƚŝĐĞ ӑ ĐŽƐǇƐƚĞŵƐĞƌǀŝĐĞƐ ӑ ,ĞĂůƚŚŝŵƉĂĐƚĂƐƐĞƐƐŵĞŶƚ ӑ >ŽŽŬŝŶŐŚĂƌĚĂƚƚŚĞŶŽͲĂĐƚŝŽŶĂůƚĞƌŶĂƚŝǀĞ ӑ ŝĨĨŝĐƵůƚǇŽĨůŽŽŬŝŶŐĂƚĐƵŵƵůĂƚŝǀĞŝŵƉĂĐƚƐƵŶĚĞƌZ

Exhibit 2 to MCEA's Comments on Riverview EAW භ DĂŬŝŶŐƉƌŽŐƌĞƐƐŝŶƚŚĞƉŽǁĞƌƐĞĐƚŽƌ͕ďƵƚŶĞĞĚƚŽŵĂŬĞƉƌŽŐƌĞƐƐŽŶƚŚĞƚƌĂŶƐƉŽƌƚĂƚŝŽŶƐĞĐƚŽƌ භ EĞĞĚƚŽďĞĂƐƐĞƐƐŝŶŐƚŚĞǁŚŽůĞĐĂƌďŽŶĐǇĐůĞ͗ĐĂŶĂƉƌŽũĞĐƚďĞĚŽŶĞƚŚĂƚŝƐĐĂƌďŽŶŶĞƵƚƌĂůŽƌ ǀĞƌǇĐůŽƐĞ͍/ĨĂƉƌŽũĞĐƚĐĂŶ͛ƚŽĨĨƐĞƚŝƚƐĐĂƌďŽŶ͕ŵĂǇďĞǁĞŶĞĞĚƚŽƐĂǇŶŽ͘ භ ŽŶƐŝĚĞƌĞŶǀŝƌŽŶŵĞŶƚĂůĐŽƐƚƐŝŶƌĞůĂƚŝŽŶƚŽĞĐŽƐǇƐƚĞŵƐĞƌǀŝĐĞƐ භ ŶǀŝƌŽŶŵĞŶƚĂů:ƵƐƚŝĐĞ;:ͿĐŽŶƐŝĚĞƌĂƚŝŽŶƐ͗ŚĂǌĂƌĚŽƵƐƉƌŽũĞĐƚƐĂƌĞƐŝƚĞĚĐůŽƐĞƌƚŽ:ĂƌĞĂƐŽĨ ĐŽŶĐĞƌŶ͘tĞŶĞĞĚƚŽĨŝŶĚĂĚŝĨĨĞƌĞŶƚǁĂǇƚŽĂƐƐĞƐƐƐŝƚŝŶŐ͘^ŚĂƌŝŶŐĞƋƵĂůůǇŝŶƚŚĞƌŝƐŬƐŽĨƉƌŽũĞĐƚƐ͘ භ ^ƚĂƚĞĨĞĂƌĨƵůƚŽƚĂŬĞŽŶůĂƌŐĞĐŽƌƉŽƌĂƚĞŝŶƚĞƌĞƐƚƐ x DŝŶŶĞƐŽƚĂĞŶǀŝƌŽŶŵĞŶƚĂůƌĞŐƵůĂƚŽƌƐŵƵƐƚĐŽŶƐŝĚĞƌƚŚĞŝŶĚŝƌĞĐƚĞĨĨĞĐƚƐŽĨƚŚĞŝƌĂĐƚŝŽŶƐ o /ŶĚŝƌĞĐƚĞĨĨĞĐƚƐŽĨĂĐƚŝŽŶƐĂƌĞŐĞŶĞƌĂůůǇŝŶƚŚĞƉƵƌǀŝĞǁŽĨƌĞŐƵůĂƚŝŶŐĞŶƚŝƚŝĞƐ o ůŝŵĂƚĞĐŚĂŶŐĞŝƐĂƐůŽǁŵŽǀŝŶŐďĂĐŬŐƌŽƵŶĚĂŶĚŝŶĚŝƌĞĐƚĐĂƵƐĞŽĨŵĂŶǇĂĐƚŝŽŶƐ͕ǁŚŝĐŚ ĞĨĨĞĐƚƐĂĐĐƵŵƵůĂƚĞŽǀĞƌĂůŽŶŐƉĞƌŝŽĚ o ZĞŐƵůĂƚŽƌƐĂƌĞŵŽƌĂůůǇƌĞƐƉŽŶƐŝďůĞƚŽĐŽŶƐŝĚĞƌĐůŝŵĂƚĞĐŚĂŶŐĞ x ŽŶƐŝĚĞƌƚŚĞŝĚĞĂŽĨŽďũĞĐƚŝǀĞƉĞĞƌƌĞǀŝĞǁŝŶƚŚĞZƉƌŽĐĞƐƐ;ĐŽůůĂďŽƌĂƚŝǀĞͿ͘hƚŝůŝǌĞƉƌŽĨĞƐƐŝŽŶĂůƐ ƚŽƌĞǀŝĞǁĂŶĚĂĚĚƚŽŶǀŝƌŽŶŵĞŶƚĂůZĞǀŝĞǁĚŽĐƵŵĞŶƚƐͬƐƚƵĚǇ͘

ŶǇƉƌŽũĞĐƚƐŚŽƵůĚƚĂŬĞŝŶƚŽĂĐĐŽƵŶƚƚŚĞĐŽŵƉůĞƚĞůŝĨĞĐǇĐůĞŐƌĞĞŶŚŽƵƐĞŐĂƐĞŵŝƐƐŝŽŶƐ;ĚŝƌĞĐƚĂŶĚ ŝŶĚŝƌĞĐƚͿ͘^ŽŵĞƚŚŝŶŐŶĞĞĚƐƚŽďĞďƵŝůƚŝŶƚŽƚŚĞŶǀŝƌŽŶŵĞŶƚĂůZĞǀŝĞǁƉƌŽĐĞƐƐƚŽƋƵĂŶƚŝĨǇ͞ƐŝŐŶŝĨŝĐĂŶƚ͘͟ ŽŶƐŝĚĞƌĂŶŝŶĚĞƉĞŶĚĞŶƚƌĞǀŝĞǁĞƌƉƌŽĐĞƐƐ;ůŝŬĞƚŚĞŽďũĞĐƚŝǀĞƉĞĞƌͲƌĞǀŝĞǁŽŶĞĨŽƌƐĐŝĞŶĐĞůŝƚĞƌĂƚƵƌĞͿ͘

x ŝƚŝǌĞŶƐǁŽƵůĚůŝŬĞŵŽŶƚŚůǇĐŽŶǀĞƌƐĂƚŝŽŶƐŶŽƚƐŽŵĞƚŚŝŶŐƋƵĂƌƚĞƌůǇ͘dŽĚĂǇŝƐŶŽƚĞŶŽƵŐŚƚŝŵĞ͘ ŶǀŝƌŽŶŵĞŶƚĂůYƵĂůŝƚǇŽĂƌĚͬƚƚŽƌŶĞǇ'ĞŶĞƌĂůƚŽůĞƌĂƚĞĨĂŝůƵƌĞŽĨĞƉĂƌƚŵĞŶƚŽĨŶĂƚƵƌĂů ZĞƐŽƵƌĐĞƐƚŽŝŐŶŽƌĞƵŶĚĞŶŝĂďůĞĐƵŵƵůĂƚŝǀĞĞĨĨĞĐƚƐŽĨĨŽƌĞƐƚƚŽĨŝĞůĚĐŽŶǀĞƌƐŝŽŶƐ͘ x ,ŽǁĐĂŶƐƚĂƚĞĂŐĞŶĐŝĞƐĐĂůůĨŽƌŐƌĞĞŶŚŽƵƐĞŐĂƐĞŵŝƐƐŝŽŶƐƌĞĚƵĐƚŝŽŶƐ͕ƉŽůůŝŶĂƚŽƌŚĂďŝƚĂƚ͕ĞƚĐ͘ ǁŚŝůĞĂůůŽǁŝŶŐĐĂƌďŽŶͲƐĞƋƵĞƐƚĞƌŝŶŐĨŽƌĞƐƚƐƚŽďĞĐŽŶǀĞƌƚĞĚ;WŝŶĞůĂŶĚ^ĂŶĚƐͿŽǀĞƌŵĂŶǇǇĞĂƌƐ͍ x dŚĞƉƌŽĐĞƐƐŵŽǀĞƐƚŽŽƐůŽǁůǇƚŽŵĂŬĞĂŵĞĂŶŝŶŐĨƵůĚŝĨĨĞƌĞŶĐĞ

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Exhibit 3 to MCEA's Comments on Riverview EAW Minnesota Center for Environmental Advocacy’s Comments on the Environmental Assessment Worksheet for Waukon Dairy

October 16, 2020

INTRODUCTION

The Waukon Dairy project (the “Project”) in Norman County, as proposed by agribusiness giant Riverview, LLP (“Riverview”), will be the fourth-largest Confined Animal Feeding

Operation (“CAFO”) in Minnesota if it is approved. The farm will house 10,500 animal units of

Jersey dairy cows, produce more than 76,000 tons of greenhouse gas (“GHG”) emissions, use

around 121 million gallons of water annually, and produce 86 million gallons of manure. The

potential for significant environmental effects—from GHGs, water use, and manure

contamination—is immense. Yet, the Environmental Assessment Worksheet (“EAW”) for the

Project fails to fully analyze several critical issues, leaving its assessment incomplete. First, the

EAW fails to analyze the GHG emissions that will emanate from the thousands of dairy cows at

this huge CAFO and the effects those emissions will have on climate change. Second, the EAW

does not include the results of an aquifer test conducted at Riverview’s proposed pumping rate,

which is necessary to determine the effects of Riverview’s high-capacity wells on the aquifer that

supports drinking and irrigation water throughout the region. And third, the EAW lacks a full

assessment of the cumulative effects of applying so much additional manure to fields in a region

where surface waters are already impaired with agricultural pollutants.

This operation is massive—about 45 times the size of an average Minnesota dairy farm—

and proposed by the largest player in Minnesota’s dairy industry.1 This is not a family farm, but

1 See Adam Belz, Milking cows on an industrial scale arrives in western Minnesota, and some farmers shudder, STAR TRIBUNE (Aug. 11, 2018), https://www.startribune.com/milking-cows-on-an-industrial- scale-arrives-in-western-minnesota-and-some-farmers-shudder/490589351/?refresh=true.

1 an industrial farming facility. Like most industrial complexes, the Project has the potential to

pollute the air, water, and land around it. Before it moves forward, MPCA must study all of the

Project’s possible effects on Minnesota’s environment. At a minimum, the Project’s EAW should

be supplemented to include and fully analyze the missing information, so that the Minnesota

Pollution Control Agency (“MPCA”) can completely and accurately determine whether the Project

has the potential for significant environmental effects. With a Project of this scale, however, even

with the incomplete information contained in the EAW, MPCA should recognize the potential for

significant environmental effects and order an Environmental Impact Statement (“EIS”) to further

examine those effects.

I. MPCA MUST ORDER AN EIS BECAUSE THE PROJECT’S GHG EMISSIONS HAVE THE POTENTIAL FOR SIGNIFICANT ENVIRONMENTAL EFFECTS

First, the EAW fails to fully account for the Project’s GHG emissions or fully analyze their potential for significant environmental effects. This Project will have 10,500 cows, and even under the MPCA’s accounting, which leaves out emissions from a number of sources, it will produce

2 76,106 tons of CO2-e GHG emissions per year. Although MPCA asserts that there are no

standards to apply or methods to quantify the effects of these emissions, a Project producing this

many GHG emissions, by any legitimate measure, must have at least the potential for significant

environmental effects. For a project of this scale, the Minnesota Environmental Policy Act

(“MEPA”) requires MPCA to order an EIS to fully study the effects of these emissions.

2 MPCA, Waukon Dairy Environmental Assessment Worksheet 3, 29 (Aug. 17, 2020) [hereinafter “EAW”]. The EAW indicates the Project will include 10,500 animal units of Jersey dairy cows, which this comment will assume means 10,500 mature dairy cows of less than 1,000 lbs. MPCA, Feedlot Animal Unit Capacity Calculator, https://www.pca.state.mn.us/sites/default/files/wq-f3-30.xls.

2 The EAW Fails To Account For All GHG Emissions That Will Result From This Project.

1. Minnesota law and public policy require a full accounting of all GHG emissions from the project as part of the environmental review.

Under MEPA, a responsible governmental unit must consider all impacts “that may be

reasonably expected to occur from the project” to determine whether the project has “the potential

for significant environmental effects.”3 The agency must take a “hard look” at the issues involved, and “genuinely engage[ ] in reasoned decision making.”4 As the Minnesota Court of Appeals

recently explained, the environmental review process must include an analysis of GHG emissions if the emissions are “reasonably expected” to occur from the project with a potential for significant environmental effects.5

A consideration of GHG emissions aligns with Minnesota law and policy, which call for

steep reductions in GHG emissions throughout the state—reductions that will not be accomplished

without significant collective action across all sectors. Minnesota’s 2007 Next Generation Energy

Act acknowledges the threat GHG emissions pose to public health and welfare by setting state

goals to reduce statewide GHG emissions, with an ultimate goal of reducing emissions in the state

80% below 2005 levels by 2050.6 Unfortunately, Minnesota has fallen short of its 2015 goal to

decrease GHG emissions 15% below the 2005 baseline, and Minnesota is not on track to meet the

2025 goal of a 30% decrease.7 The agricultural sector is particularly off-track: methane and nitrous

3 Minn. R. 4410.1700, subp. 6. 4 Citizens Advocating Responsible Dev. v. Kandiyohi Cty. Bd. of Comm’rs, 713 N.W.2d 817, 832 (Minn. 2006). 5 In re Denial of a Contested Case Hearing Request & Modification of a Notice of Coverage Under Individual Nat’l Pollution Discharge Elimination Sys. Feedlot Permit No. MN0067652, No. A19-0207, 2019 WL 5106666, at *7-8 (Minn. App. Oct. 14, 2019). 6 Minn. Stat. § 216H.02, subd. 1, subd. 2 (2019). 7 Gov. Tim Walz, Executive Order 19-37, Establishing the Climate Change Subcabinet and the Governor’s Advisory Council on Climate Change to Promote Coordinated Climate Change Mitigation and Resilience Strategies in the State of Minnesota 1 (Dec. 2, 2019), available at https://mn.gov/governor/assets/ 2019_12_2_EO_19-37_Climate_tcm1055-412094.pdf.

3 oxide emissions from agriculture actually increased between 2005 and 2016.8 Recognizing that a

coordinated approach is needed to address the existential threat of climate change, Gov. Walz has

created a Climate Change Subcabinet, which will identify strategies to help Minnesota meet or

exceed its GHG emission reduction goals.9

The Minnesota Attorney General has also endorsed the inclusion of a GHG emissions accounting and analysis in the environmental review process. In a comment to the federal Council on Environmental Quality, the Minnesota Attorney General joined other states’ attorneys general in asserting that agencies’ obligation under the National Environmental Policy Act (“NEPA”), the federal analog to MEPA, is to carefully consider every significant environmental impact of a project.10 This review “must necessarily include examining a project’s contribution to climate

change through its GHG emissions.”11 Disclosure and examination of the GHG impacts, the

Minnesota Attorney General explained, provides the public with useful information that increases

their ability to ask agencies and project proponents to move toward greener and sustainable options

in their projects.12 Accordingly, to comply with the “hard look” at environmental issues required

by NEPA (and by MEPA), a quantification and analysis of the project’s likely climate change impacts is required.13

8 MPCA, Greenhouse gas emissions in Minnesota: 1990-2016 (2019), https://www.pca.state.mn.us/sites /default/files/lraq-2sy19.pdf [hereinafter “GHG in Minn.”]. 9 Walz, supra note 7, at 2. 10 Comments of the Attorneys General of California, Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington to the Council on Environmental Quality 10 (Aug. 26, 2019) attached as Exhibit 1 [hereinafter “Comments of the Attorneys General”]. 11 Id. 12 Id. at 11. 13 Id.

4 In addition, the state agency tasked with developing rules for the environmental review

process under MEPA has recognized that GHG emissions need to be addressed in the

environmental review process. In January 2020, the Environmental Quality Board (“EQB”)

convened a team to provide recommendations regarding the inclusion of climate change-related information in environmental review documents.14 EQB based its decision on “general agreement” that climate information is needed in environmental review documents to inform decision making on proposed projects.15 In creating the task force, EQB specifically noted that an effective climate

change assessment would need to include a GHG emissions analysis and discuss mitigation,

adaptation, and resiliency planning.16 A report on the issue is due later this year.

To comply with the recent Court of Appeals decision, Minnesota public policy, the

Attorney General’s interpretation of the requirements of environmental review, and the anticipated approach of EQB, MPCA must include a full and complete accounting and analysis of the GHG emissions from the Project and their expected environmental effects in the EAW.

2. MPCA’s estimates of the Project’s GHG emissions are too narrow in scope and underestimate the Project’s total emissions.

The EAW presents only a fractional picture of the GHGs that will be directly and indirectly emitted from a farm with 10,500 dairy cows, thereby significantly underestimating the Project’s environmental impact.17 The EAW estimates emissions from only three sources—manure storage, enteric fermentation, and manure land application—and only for two GHGs—methane and nitrous

14 Minn. Envtl. Quality Bd., Recommended strategies for incorporating information related to climate change into Minnesota’s Environmental Review Program 1 (2020), attached as Exhibit 2 [hereinafter “EQB Recommended Strategies”]. 15 Id. 16 Id. at 2. 17 EAW at 2.

5 18 oxide. The EAW concludes that these emissions will produce an estimated 76,106 tons of CO2-

equivalent emissions per year.19

But MPCA fails to account for other numerous sources of GHG emissions, resulting in a

calculation that significantly underestimates the Project’s total emissions. First, the Project

includes the construction of huge new barns, a milking parlor, and other agricultural buildings,

which will require energy for electricity, heating and cooling, and milking equipment. In addition,

Riverview will construct two on-site apartment buildings, with a total of eight units comprised of

48 bedrooms and 16 bathrooms.20 These residences will generate emissions related to electricity

use, heating and cooking, air conditioning, and waste generation. Vehicles serving the Project—

including traffic from delivery vehicles and employee transportation, as well as farm vehicles and

heavy machinery—will burn fuel and generate emissions. Producing and processing feed for

10,500 dairy cows also will create significant emissions. And the Project’s construction-related emissions are also likely to be significant.21 However, none of these emissions are accounted for

in the EAW.

MPCA itself concedes several of these deficiencies, noting:

The potential GHG emissions . . . are only estimates and do not consider all GHG emissions that the Project could create or induce. For example, GHG emissions are not calculated for electricity generation that is required to operate lighting, heating, milk pumping equipment etc. Also not included are GHG emissions from fuel

18 Id. at 21. 19 Id. 20 Id. at 5. 21 Although these are one-time rather than annual emissions, GHGs remain in the atmosphere for years, decades, or centuries, and therefore even one-time emissions have an impact on the climate. These emissions can be calculated—as an example, the City of Stillwater recently conducted a GHG analysis for a proposed residential and commercial development, which found that during the construction phase the project would generate 27,672 tons of CO2-e GHG emissions from on- and off-road vehicles, refrigerant use, and the production of construction materials. Westwood, Central Commons EAW, Appendix G at 31 (June 1, 2020), https://www.ci.stillwater.mn.us/home/showdocument?id=595 [hereinafter “Central Commons EAW”].

6 combustion required to deliver feed, animals, and milk, and to operate farm equipment used in growing feed, processing feed, and applying manure.22

These sources, however, can generate a significant portion of an agricultural project’s

environmental impact. The Food and Agricultural Organization of the United Nations estimates

that feed production and processing alone account for 45% of GHG emissions from livestock

production.23 Furthermore, ICF International estimates that carbon dioxide emissions from energy use account for 14% of all agricultural emissions across the United States.24 Management of

livestock waste—one of the only sources quantified in the EAW—accounts for only 12% of total

agricultural GHG emissions.25

Table 1 below compares the emissions sources MPCA included in its accounting to those

MPCA omitted.

Table 1: GHG Sources Included and Omitted from EAW Sources Included in the EAW Sources Omitted from the EAW - Manure Storage - Construction - Enteric Fermentation - Land-use change - Manure Land Application - Onsite fuel combustion - Electricity generation - Farm vehicles and transportation - Refrigeration and air conditioning - Feed production and processing

Clearly, the EAW significantly underestimates the emissions that will result from this project. Limiting the analysis to a narrow set of emission sources because they fit within MPCA’s agricultural emissions definition results in a failure to analyze the Project’s full effects. The EAW

22 EAW at 21. 23 Food and Agric. Org. of the UN, Global Database of GHG Emissions Related to Feed Crops: Methodology 4 (2017), http://www.fao.org/3/a-i8276e.pdf. 24 ICF Int’l, Greenhouse Gas Mitigation Options and Costs for Agricultural Land and Animal Production within the United States 1.4 (2013), https://www.usda.gov/sites/default/files/documents/GHG_Mitigation _Options.pdf. 25 Id.

7 significantly underrepresents the Project’s GHG emissions, and therefore provides an incomplete

picture of its actual environmental impact. MEPA requires MPCA to consider all environmental

impacts “that may be reasonably expected to occur from the project.”26 This means MPCA must

consider not just some or a select few, but all of the Project’s reasonably estimable GHG

emissions.27 But the EAW fails to do so.

3. MPCA can estimate the proper scope of GHG emissions using existing tools.

MPCA cannot avoid quantifying GHG emissions from all of the Project’s sources by asserting that they are too difficult to calculate. There are many simple, readily available tools to quantify GHG emissions that MPCA can use. Many of these tools are “plug and play” models that function similarly to the tool MPCA used, but that would better reflect the full array of GHG emissions from the Project. MPCA should select the tool that provides the most accurate estimate of the total emissions from the Project, not simply the tool with which MPCA has the most familiarity.

MPCA chose to quantify emissions from only manure storage, enteric fermentation, and manure land application based on emission factors the U.S. Environmental Protection Agency

(“EPA”) developed for estimating total feedlot GHG emissions.28 MPCA states that it has

previously used these emission factors in estimating GHG emissions from feedlots in statewide

inventories of emissions and therefore used those same categories and emissions factors for this

Project as well.29 But the statewide assessment and the EAW for the Project are not the same. In

the state-wide assessment, MPCA accounted for some agricultural emissions in other sectors; for

26 Minn. R. 4410.1700, subd. 6. 27 Denial of a Contested Case Hearing Request, 2019 WL 5106666, at *7-8. 28 EAW at 21. 29 Id.

8 example, emissions due to agricultural use of electricity were included in the electricity sector, and

emissions from farm trucks were included in the transportation sector.30 Accordingly, all emissions would be accounted for in some sector within the assessment. But in the EAW, MPCA does not divide emissions accounting into sectors, so the emissions from electricity and transportation

simply are not counted at all. This is not consistent with MEPA’s requirement that the reviewing

agency consider any impacts “that may be reasonably expected to occur from the project”31 or

with the Court of Appeals directive that MPCA take a “hard look” at GHG emissions when the

emissions from a project have the potential for significant environmental effects.32

In addition, MPCA cannot justify its limited accounting of GHG emissions by asserting

that manure storage, enteric fermentation, and manure land application are the sources for which

EPA provides emissions factors.33 Notably, EPA also provides emissions factors for other

components of the agricultural sector, including those not accounted for in the EAW. For instance,

EPA has produced emissions factors for electricity generation,34 which MPCA could use to

estimate expected emissions from the Project’s electricity consumption. EPA has also created

emissions factors for calculating carbon dioxide emissions per gallon of fuel35—including diesel

fuel, liquefied natural gas, motor gasoline, and others—as well as methane and nitrous oxide

emissions per gallon of fuel used in agricultural equipment.36 Given the ease of use and availability

30 See MPCA, Greenhouse Gas Emissions in Minnesota: 1970-2008, at 30, 61 (2012), https://www.pca. state.mn.us/sites/default/files/p-gen4-08.pdf (showing that emissions for farm vehicles are not separated out from the transportation sector and explaining that emissions associated with electricity consumption are estimated separately as electric power sector emissions). 31 Minn. R. 4410.1700, subp. 6. 32 Denial of a Contested Case Hearing Request, 2019 WL 5106666, at *7. 33 EAW at 21. 34 EPA, Emission Factors for Greenhouse Gas Inventories, Table 6 (2020), https://www.epa.gov/sites/ production/files/2020-04/documents/ghg-emission-factors-hub.pdf 35 EPA, Greenhouse Gas Inventory Guidance: Direct Emissions from Mobile Combustion Sources, App’x at 15 (2016). 36 Id. at 22.

9 of this data, MPCA cannot assert that the emissions from the Project’s electricity consumption or

fuel-based emissions would be too difficult to calculate. The City of Stillwater, for example,

recently conducted a GHG analysis within an EAW for a new residential and commercial

development that used many of the EPA emissions factors discussed in this comment.37 It is arbitrary and capricious for MPCA to include only some emissions sources based on the availability of EPA emission factors when similar factors are available for other sources. Absent further explanation, this arbitrary finding will not withstand review.38 Any reasoned analysis of

GHG emissions from a project must consider all emissions sources a project produces.

In addition to emissions factors, there are dozens of models and calculators available that can estimate emissions from agricultural projects.39 These tools range from “plug-and-play” web- based or spreadsheet calculators based on default emissions factors, to process-based models that require more detailed data inputs, time, and expertise. Table 2 below provides a few examples of tools that could be used to estimate whole-farm emissions resulting from the Project.

37 Central Commons EAW, supra note 21, at 32. 38 See, e.g., Pope Cty. Mothers v. Minnesota Pollution Control Agency, 594 N.W.2d 233, 237 (Minn. App. 1999) (holding MPCA’s failure to consider the cumulative environmental effects of multi-site feedlot operation in determining need for an EIS was arbitrary and capricious). 39 See K. Denef et al., Report of Greenhouse Gas Accounting Tools for Agriculture and Forestry Sectors (2012), http://virtualfarm.psu.edu/assets/uploads/content/Denef_et_al_2012_GHG_Accounting_Tools_ v1.pdf; World Resources Institute, GHG Protocol Agricultural Guidance 88-96 (2014), available at https://ghgprotocol.org/sites/default/files/standards/GHG%20Protocol%20Agricultural%20Guidance%20 %28April%2026%29_0.pdf.

10 Table 2: Tools to Estimate Whole-Farm Emissions Tool Name Type of Tool Description Generates a report comparing emissions and COMET-FARM40 Web-based calculator carbon changes between current management practices and alternative future scenarios.

Provides an estimate of on-farm GHG emissions , and 41 Web-based calculator in just 10-15 minutes Cool Farm Tool illustrates potential for management decisions to reduce emissions and/or sequester carbon.

Comprehensive tool to understand the Integrated Farm System Process simulation emissions impact of changes in farm Model (IFSM)42 model management. Primarily used for systems research in dairy and beef production.

In sum, numerous, user-friendly tools would provide a more inclusive and accurate GHG emissions estimate for the Project. Currently, MPCA’s narrow accounting of GHG emissions significantly underestimates the Project’s total GHG emissions. This skews the information and undermines MPCA’s ability to correctly determine whether the Project has the potential for a significant environmental effect.

B. The EAW Fails To Consider The Effects Of The GHG Emissions From The Project.

In addition to undercounting the Project’s GHG emissions, the EAW entirely fails to consider the potential effects those emissions might have in advancing climate change. While

MPCA asserts that it simply is not possible to analyze the impacts the emissions might have,

MEPA in fact obligates MPCA to perform this analysis, and guidance documents provide a framework for how it may do so.

40 U.S. Dep’t Agric. et al., COMET Farm, http://comet-farm.com/. 41 Cool Farm Alliance, Greenhouse Gases, https://coolfarmtool.org/coolfarmtool/greenhouse-gases/. 42 U.S. Dep’t Agric., Integrated Farm System Model (IFSM), https://data.nal.usda.gov/dataset/ integrated- farm-system-model-ifsm.

11 1. MPCA did not attempt to determine whether the GHG emissions from the Project would have the potential for significant environmental effects.

Although MPCA concedes that the Project will emit GHGs, it asserts that the Project’s projected GHG emissions “are only estimates and do[es] not consider all GHG emissions that the project could create or induce.”43 The MPCA refuses to place all the GHG emissions in context,

discuss their potential effects on state GHG emissions goals, or attempt to discern how they will

affect the environment. Instead, it merely states the Project would directly release GHG emissions

and indirectly affect GHG emissions from related activities without drawing any conclusions about

the Project’s potential effects.

This is not consistent with MEPA’s requirements and the available guidance regarding

analysis of GHG emissions in environmental review. MEPA does not merely require that the

factors that may negatively affect the environment be simply identified in an EAW. Instead, the

law requires that the EAW actually examine the impacts of those factors to determine if they have

the potential for significant environmental effects.44 As an example, if an EAW found that a new wastewater treatment plant would discharge phosphorus into a lake, it would have to then examine the expected effects of that discharge, such as algal blooms and loss of fish habitat. It could not merely quantify the phosphorus discharge and not mention any of the expected effects on the lake.

Similarly, simply calculating a project will emit 76,106 CO2-e tons of emissions annually but then failing to perform any analysis of what that may mean for the environment does not meet MEPA’s the requirements.

43 EAW at 21. 44 See Minn. R. 4410.1700, subp. 1 (stating an EIS will be ordered for all projects that have the “potential for significant environmental effects”); Minn. R. 4410.1700, subp. 7(A) (explaining that in determining the need for an EIS, the agency must consider the “type, extent, and reversibility” of environmental effects).

12 Even if current modeling is unable to determine the Project’s exact effects on climate

change, this does not excuse MPCA from determining whether the Project has the potential for

significant environmental effects. For direction on how to conduct this analysis, MPCA may look

to guidance issued by the Council of Environmental Quality (“CEQ”) under the Obama

administration for agencies to use when assessing a project’s climate impacts.45 The CEQ is the

agency charged with overseeing the implementation of NEPA, and it is well established that

interpretations of NEPA’s requirements may be used when interpreting the requirements of

MEPA, making the use of this guidance appropriate.46

The CEQ guidance admonished agencies for exactly the type of analysis included in the

EAW—simply comparing the Project’s GHGs to the total emissions for the state and the

agricultural sector to make them seem negligible; discussing climate change generally; and making

no attempt to contextualize emissions. As CEQ stated:

CEQ recognizes that the totality of climate change impacts [are] not attributable to any single action, but are exacerbated by a series of actions . . . . Therefore, a statement that emissions from a proposed Federal action represent only a small fraction of global emissions is essentially a statement about the nature of the climate change challenge, and is not an appropriate basis for deciding whether or to what extent to consider climate change impacts under NEPA.47

45 CEQ, Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews 10-11 (2016), attached as Exhibit 3 [hereinafter, “CEQ Guidance”]. While the CEQ guidance issued under the Obama administration has been officially withdrawn by the Trump administration, in the absence of new, finalized guidance from the CEQ or the EQB, the withdrawn guidance remains useful as a roadmap for conducting a GHG analysis. This is particularly true because the Minnesota Office of the Attorney General has commented favorably on the Obama administration guidance and endorsed the approach taken by the CEQ. 46 See Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977) (endorsing the “hard look” requirement from federal law); Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 468 n.10 (Minn. 2002) (noting that because both federal and Minnesota environmental law primarily “operate by requiring administrative agencies to take a ‘hard look’ at the environmental consequences of government action,” “looking to federal case law is appropriate and helpful”). 47 CEQ Guidance, supra note 45, at 11.

13 Instead of merely calculating a proposed project’s emissions as a percentage of sector, nationwide,

or global emissions, CEQ cautioned, “agencies should use appropriate tools and methodologies

for quantifying GHG emissions and comparing GHG quantities across alternative scenarios.”48

It is clear why CEQ cautions against the cursory analysis MPCA performed. An analysis

that determines GHG emissions are not significant simply because they are a small fraction

compared to global or regional emissions ensures that no project will ever have emissions that

reach the significance threshold. Indeed, even the construction and operation of a new coal plant

in Minnesota with a projected forty-year operating life would not meet the significance threshold

because its emissions, although substantial, would be fractional when compared to global

emissions. If MPCA performs this kind of climate impact review, its environmental reviews will

neglect the most serious impacts of climate change. MPCA cannot avoid its responsibilities under

MEPA by simply suggesting the Project’s emissions are small compared to those of the full agricultural sector and then refusing to do any further examination.

2. MPCA failed to perform a cumulative potential effects analysis to determine the impacts of GHG emissions from the Project.

In addition to critiquing inadequate analyses, CEQ Guidance also provides directions for performing a legitimate examination of the impacts of the Project’s GHG emissions. Because climate change results from the incremental addition of GHG emissions from millions of individual sources that collectively have a large impact, CEQ determined that the examination of a project’s climate impacts must be done through a cumulative impacts analysis.49 This

methodology is consistent with how other states, like California, consider GHG emissions in

48 Id. 49 Id. at 17. Under NEPA, a “cumulative impact” is defined as the “impact on the environment that results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7.

14 environmental review.50 The MEPA equivalent to the federal standard of “cumulative impacts” is

“cumulative potential effects,” defined as:

the effect on the environment that results from the incremental effects of a project in addition to other projects in the environmentally relevant area that might reasonably be expected to affect the same environmental resources, including future projects . . . regardless of . . . what jurisdictions have authority over the projects. Significant cumulative potential effects can result from individually minor projects taking place over a period of time.51

Accordingly, the examination of the effects of the GHG emissions from the Project should be

performed as a cumulative potential effects analysis.

The Minnesota Attorney General’s Office endorsed this approach and illustrated how a

cumulative potential effects analysis for climate change should be performed. In the comment to

CEQ with other states’ attorneys general, the Minnesota Attorney General identified that when

conducting a cumulative effects analysis, an agency cannot simply quantify a project’s GHG

emissions, compare the emissions to local, regional, national, or sector-wide emissions estimates,

and then provide a qualitative discussion of the effects of GHG emissions generally.52 Instead, in order to take the requisite “hard look,” an agency must quantify cumulative impacts from a project’s GHG emissions.53 Then, it must consider a project’s consistency with plans and policies to reduce GHG emissions.54 Finally, it should consider mitigation measures for cumulative

impacts from GHG emissions.55

50 See Letter from State of California Governor’s Office of Planning and Research to White House Council on Environmental Quality 5 (Mar. 24, 2015), available as Attach. 2 at https://oag.ca.gov/system/files /attachments/press-docs/NEPA%20GHG%20Guidance%20Multistate%20Comments_8-26-19.final submission-w-Attachments.pdf, (noting climate change is an inherently cumulative impact). 51 Minn. R. 4410.0200, subd. 11a. 52 Comments of the Attorneys General, supra note 10, at 18. Notably, the EAW for the Project does exactly what the Attorneys General advise against. 53 Id. 54 Id. 55 Id.

15 Moreover, MPCA’s inability to link the specific emissions from the Project with specific

effects of climate change does not excuse it from analyzing the cumulative effects the Project will

have in conjunction with other GHG emissions.56 Indeed, MEPA rules specifically acknowledge

that a project may still reach the significance threshold, although individually minor, when it is

part of a cumulative effect.57 This analysis is an integral part of MPCA’s obligation to determine

if the Project has the potential for significant environmental effects, and MPCA is not allowed to

ignore it.

After quantifying cumulative impacts, MPCA must consider the Project’s emissions in context with Minnesota’s goals for reducing GHG emissions. In this case, this could include an analysis of (1) Minnesota’s plan to reduce GHG emissions in the Next Generation Energy Act

(“NGEA”);58 (2) Minnesota’s progress in meeting the NGEA goals; (3) agriculture’s role in

meeting the NGEA goals; and (4) the Project’s effect on Minnesota’s ability to meet the NGEA

goals. Again, all of this information is readily available to MPCA, which published numerous

reports about climate impacts and Minnesota’s progress in reducing GHG emissions, including

Greenhouse Gas Emissions in Minnesota: 1990-201659 and Greenhouse Gas Reduction Potential

of Agricultural Best Management Practices60 in 2019 (“2019 Reports”). The 2019 Reports contain

56 Pope Cty. Mothers, 594 N.W.2d at 237 (holding MPCA did not engage in reasoned decision making when it failed to consider the cumulative environmental effects of multi-site feedlot operation). 57 Minn. R. 4410.1700, subd. 7. 58 Minn. Stat. § 216H.02. 59 GHG in Minn., supra note 8. 60 MPCA, Greenhouse Gas Reduction Potential of Agricultural Best Management Practices (2019), https://www.pca.state.mn.us/sites/default/files/p-gen4-19.pdf [hereinafter “Agriculture BMPs”].

16 information about climate change in Minnesota and agriculture’s contribution to our state GHG

emissions. Some examples of relevant information include:

• “To reduce the impacts of climate change, Minnesota has set a goal to reduce greenhouse gas emissions by 80 percent by 2050, but we are behind schedule.”61 • “Without continued support and additional effort, we are not likely to achieve the goals of the [NGEA].”62 • “Agriculture accounts for approximately one-quarter of Minnesota’s greenhouse gas emissions, so strategies to reduce emissions from this sector are critical to reaching statewide goals.”63 • Agriculture is the largest source of nitrous oxide and methane emissions in the state.64

This information demonstrates the unique role that agriculture plays in Minnesota’s GHG

emissions. It clarifies that Minnesota cannot achieve its GHG reduction goals without reductions

from the agricultural sector when agriculture is the state’s largest source of nitrous oxide and methane emissions. Perhaps more importantly, the 2019 Reports also show that the portions of the agricultural sector relevant to the Project have not achieved emissions reductions. In fact,

emissions from key agricultural sectors have actually increased during a period in which they were

supposed to decrease. For example, while the NGEA called for emissions across the board to

decrease 15% from 2005 to 2015,65 during that same period nitrous oxide emissions from crop

agriculture increased about 12%66 and methane emissions from animal agriculture increased about

8%.67

61 Id. 62 GHG in Minn., supra note 8, at 15. 63 Agriculture BMPs supra note 60, at Executive Summary (emphasis added). 64 GHG in Minn., supra note 8, at 2, 8. 65 Minn. Stat. § 216H.02. 66 GHG in Minn., supra note 8, at 8. 67 Id.

17 MPCA failed to include this critical information and context in the EAW. The EAW does

not mention that Minnesota needs to take more aggressive action than in the past in order to achieve

the NGEA’s goals, and it fails to note that Minnesota is studying additional ways to reduce

emissions dramatically across all emitting sectors, including agriculture. Instead, the EAW creates

a misleading picture of Minnesota’s progress on GHG emissions, combining he agriculture and forestry sectors to describe a 12% reduction in emissions compared to the 2005 baseline, while failing to note that the forestry sector is entirely responsible for the decrease and offsetting increases from agriculture.68 At the same time, the EAW downplays the effects of climate change,

asserting that, for example, species may “shift” out of Minnesota, or forests of oak and hickory

may “replace” aspen and birch forests, instead of truthfully stating that many of those trees and

species will die.69 Shockingly, the EAW even asserts that “moderate climate change may increase

agricultural yields and food production,” parroting a frequent assertion by fossil fuel companies

that an increase in global temperature could actually be beneficial instead of catastrophic.70 An

accurate assessment of climate change in Minnesota would describe effects including more

extremely hot days of over 95 degrees, which can be particularly dangerous in urban heat islands

and harmful to crops; more frequent heavy rains and storms, which will damage crops, homes, and

businesses, while also threatening lives with flash flooding; and loss of habitats and animal,

aquatic, and plant life.71

Even without connecting the Project to particular climate change impacts— like a specific

increase in temperature or storm frequency—MPCA can still analyze the Project’s potential for

68 EAW at 29. 69 Id. 70 Id. 71 MPCA, Effects of climate change in Minnesota, https://www.pca.state.mn.us/air/effects-climate-change- minnesota [hereinafter “Climate Change in Minn.”].

18 significant environmental impacts. Indeed, MPCA must do so under MEPA. By adding context

about cumulative GHG emissions, the lack of progress toward Minnesota’s NGEA goals, and the

Project’s effect on Minnesota’s ability to reach those goals,72 MPCA will be able to more

accurately assess whether the Project has the potential for significant environmental effects.

C. The EAW Fails to Analyze Options For Mitigating The GHG Emissions From The Project.

Finally, MEPA requires that the EAW include a robust discussion of mitigation measures

that could reduce the Project’s climate change impacts. Currently, the EAW does not include a

complete discussion of the mitigation measures that Riverview could adopt to reduce the Project’s

GHG emissions. To make an informed decision regarding the potential for significant

environmental effects, MPCA must have information about whether there are ways that those

effects could be alleviated.

1. The EAW must include a full analysis of mitigation measures as part of an environmental review.

To fulfill the purpose of environmental review, MPCA must provide a robust discussion

of potential mitigation measures sufficient for meaningful public review. MEPA’s purpose

includes “understanding the impact which a proposed project will have on the environment,” and

making the information about impacts “available to governmental units and citizens early in the

decision making process.”73 The Minnesota Supreme Court agreed with the U.S. Supreme Court’s

analysis in Robertson v. Methow Valley Citizens Council that a mitigation analysis in an EAW

“gives the public the assurance that the agency has indeed considered environmental concerns in

its decisionmaking process . . . and, perhaps more significantly, provides a springboard for public

72 The third step in the Attorney General’s framework for a cumulative effects analysis— examining mitigation measures that could address the cumulative effects—is addressed in the next section. Comments of the Attorneys General, supra note 10, at 18. 73 Minn. R. 4410.0300, subd. 3.

19 comment.”74 Here, the public is entitled to information about mitigation measures Riverview could

implement to reduce the Project’s environmental effects early enough to allow meaningful

comments on how Riverview should modify or improve the Project. This information must also

be included for the benefit of other permitting agencies that rely on the EAW as the best available

information about a project’s environmental effects. By identifying practices Riverview can use to

avoid, minimize, or compensate for its GHG emissions in the EAW, governmental units that issue

permits and approvals can require improvements that make the Project a better, more resilient

operation.

Rules and guidance make clear that the mitigation discussion should include both the

practices the project proposer plans to implement and those practices the project proposer could

implement. The Minnesota Rules governing environmental review require that an EAW include a

mitigation discussion on measures the proposer plans to implement. Under Minn. R. 4410.1200,

all EAWs are required to discuss “resource protection measures that have been incorporated into

the project design”—in other words, mitigation measures planned as part of a project. This makes sense—the agency cannot truly determine a project’s potential for significant environmental

effects if the EAW is silent on the degree that the effects may be mitigated. The animal feedlot

Alternative EAW Form implements this rule, requiring an EAW to describe “any proposed feedlot

design features or air or odor emission mitigation measures to be implemented to avoid or

minimize potential adverse impacts and discuss their anticipated effectiveness.“75 This language

makes clear that the EAW must detail mitigation measures a facility plans to implement to reduce

its emissions, as well as the efficacy of those practices.

74 Minn. Ctr. for Envtl. Advocacy, 644 N.W.2d at 468 (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). 75 EAW at 18.

20 In addition, EQB guidance confirms the EAW must include a discussion of mitigation practices that could be implemented. According to EQB guidance:

Information that reduces uncertainties about impacts and their significance belongs in an EAW. Any information that helps clarify the likelihood or level of significance of a potential impact is useful in an EAW because it helps the RGU make a better determination about the need for an EIS. It could be . . . information about how the impact could be mitigated and how that mitigation will be imposed.”76

Again, the animal feedlot Alternative EAW Form implements this guidance by requiring a discussion, for all identified impacts, of “any alternatives or mitigative measures that have been or may be considered.”77

MEPA does not excuse MPCA from providing a mitigation analysis because climate change is somehow different from other environmental impacts studied in an EAW. The CEQ,

Minnesota Attorney General, and EQB have all indicated that when GHG emissions are evaluated as part of environmental review, a discussion of mitigation measures should be included. The CEQ, in its guidance on assessing a project’s climate impacts, instructed agencies to “[c]onsider alternatives and mitigation measures that would reduce GHG emissions . . . and how those alternatives would contribute to the federal, state, or local plans for GHG emission reductions.”78

The Minnesota Attorney General agreed, noting in its comment to CEQ that when a proposed project has climate change impacts, a robust analysis of mitigation measures from GHG emissions is required.79 And EQB, in creating the task force to provide recommendations regarding the addition of climate-change related information to environmental review documents, specifically

76 EQB, EAW Guidelines: Preparing Environmental Assessment Worksheets 5 (2013), https://www.eqb .state.mn.us/sites/default/files/documents/EAW%20guidelines%202013%20revision.pdf, [hereinafter “EAW Guidelines”]. 77 EAW at 30. 78 CEQ Guidance, supra note 45, at 18-19. 79 Comments of the Attorneys General, supra note 10, at 22.

21 stated that an effective climate change assessment would need to include a discussion of mitigation

measures.80

In sum, to comply with MEPA, an EAW must include a full discussion of mitigation

measures, especially for the project’s impact on climate change. The analysis must include not

only a detailed description of the mitigations the project plans to implement and the efficacy of

these practices, but also mitigations that could be implemented to further reduce environmental effects. The EAW for this Project does not fulfill this requirement for a robust mitigation analysis.

2. The EAW must analyze the feasibility and impacts of potential mitigation measures that could be implemented at the Project.

The EAW includes only a brief mitigation analysis, asserting that use of manure avoids emissions associated with commercial fertilizer production, and that converting land from other crops to alfalfa for cattle feed and increased use of cover crops can also decrease GHG emissions.81

This analysis is perfunctory and speculative, with no certainty that any of these methods will

actually offset emissions: farmers might not replace commercial fertilizer when they apply manure,

for example, and the alfalfa for cattle feed might not replace row crops. For a full mitigation

analysis, MPCA should consider measures including, for example, methods of improving energy

efficiency, green construction methods, and the addition of renewable energy sources.

First, Riverview could mitigate GHG emissions by improving energy efficiency. The more energy efficient a farm is, the fewer GHGs emissions will be produced. This is extremely important for dairy farms, which use more energy than almost any other agricultural operation.82 The milking

process can be made more efficient using a variable speed drive on the milking pump, which causes

80 EQB Recommended Strategies, supra note 14, at 1. 81 EAW at 21. 82 Andy Pressman, Dairy farm energy efficiency (April 20, 2011), http://www.milkproduction.com /Library/Scientific-articles/Management/Dairy-farm-energy-efficiency/#:~:text=Summary,and%20storing %2C%20ventilation%20and%20lighting.

22 the motor to run at the lowest possible output needed to give adequate vacuum for the milking

system.83 This can reduce the energy used by the pump as much as 60%.84 The energy needed to

cool milk can be significantly reduced by installing a heat exchanger to cool milk before it enters

a tank and using more efficient variable speed pumps to pump milk through the plate cooler.85 In

addition, the heat absorbed in cooling the milk can be recovered through a heat exchange system,

which can then heat water to be used in milking.86 Other practices to increase efficiency include

installing LED lighting, choosing high-efficiency fans for ventilation, using an energy efficient

feed storage and delivery system, and selecting energy-free livestock watering systems.87

Second, Riverview could change its cattle feed—both the way it is grown and its contents.

Altering cattle feed rations can significantly reduce methane produced. Studies show that a

seaweed supplement, for example, can reduce methane by up to 80%.88 In addition, Riverview

should examine using BMPs on the land used to grow cattle feed (e.g., no chemicals, cover cropping, minimal or no tillage, elimination of synthetic fertilizers). Use of these practices has the

89 potential to sequester GHGs at a rate of approximately one to two tons of CO2-e per acre per year.

Third, Riverview could reduce emissions during the Project’s construction. Riverview could use materials with recycled content or with low-carbon or “green” concrete to construct

83 Daniel Ciolkosz, Penn State Extension, How a Dairy Farmer Can Improve Energy Efficiency, https://extension.psu.edu/how-a-dairy-farmer-can-improve-energy-efficiency. 84 Id. 85 Farm Carbon Toolkit, Energy efficiency advice for dairy farmers, https://farmcarbontoolkit.org. uk/toolkit/energy-efficiency-advice-dairy-farmers. 86 Id. 87 Jonathan Susser, Energy Efficiency Opportunities in Agriculture (Sept. 14, 2018), https://www. advancedenergy.org/2018/09/14/energyefficiencyagriculture/. 88 Colette Kirk, Mitigating Methane Production in Dairy Farming, REDDANE FARMING (Dec. 5, 2019) https://reddanefarming.com/advice/mitigating-methane-production-in-dairy-farming/; see also Jennifer L. Satterfield, Altering Dairy Cattle Feed to Reduce Methane Production, in 2 Brian H. Lower et al., ENVIRONMENTAL SCIENCEBITES § 3.5 (2018), available at https://ohiostate.pressbooks.pub/sciencebites volume2/chapter/3-5-altering-dairy-cattle-feed-to-reduce-methane-production/. 89 Jack Kittredge, Soil Carbon Restoration: Can Biology do the Job? 8-9 (2015), available at https://www.nofamass.org/sites/default/files/2015_White_Paper_web.pdf.

23 buildings. Notably, cement production, which is a key component of concrete, results in about 7%

of the world’s carbon dioxide emissions.90 Using green concrete can significantly reduce a

building’s emissions and has been endorsed by the U.S. Conference of Mayors as a tool in the fight

against climate change.91

Finally, Riverview could analyze the feasibility of onsite, renewable energy generation to

decrease the emissions from electricity use for the Project. The barns have long, open roofs that

are potential sites for installing solar panels, which can generate electricity to power the Project

without creating carbon dioxide or other heat-trapping gases that contribute to climate change.92

Overall, placing solar panels on Project structures would reduce demand for fossil fuels, which in turn would limit the Project’s total GHG emissions. The EAW could also study solar hot water

and geothermal energy production to determine feasibility.

These are just some of the potential mitigation measures that could be used at the Project.

Without an examination of these and similar mitigation measures, MPCA lacks the necessary

factual record needed to determine whether the Project has the potential for significant

environmental effects, or if mitigation measures could cancel out some of the effects. Accordingly,

MPCA also must revise the EAW to include an analysis of mitigation measures that could reduce

the effects of the Project’s GHG emissions.

90 Cailin Crow, How “green” concrete can help cities fight climate change, SMART CITIES DIVE (Aug. 15, 2019), https://www.smartcitiesdive.com/news/us-conference-of-mayors-urges-cities-to-use- green-concrete-material-carbon-/560977/. 91 Id. 92 Union of Concerned Scientists, Rooftop Solar Panels: Benefits, Costs, and Smart Policies (2015), https://www.ucsusa.org/resources/rooftop-solar-panels-benefits-costs-and-smart-policies.

24 D. MPCA Must Order An EIS Because The Project’s GHG Emissions Have The Potential To Cause Significant Environmental Effects.

Considering the scale of the Project and its GHG emissions—those acknowledged in the

EAW and those left out—the Project clearly has the potential for significant environmental effects.

MPCA asserted that it cannot determine specific effects from the Project’s emissions, but by any legitimate measure, considering the Project’s size and the scope of its emissions, the cumulative

effects of GHG emissions in the state, and the failure of the animal agriculture sector to meet GHG

reduction goals, this Project has the potential to affect the environment in a significant way.

Accordingly, MPCA must order an EIS.

In other decisions on the need for an EIS based on GHG emissions, MPCA has pointed to the Minnesota Rules requirement that an EIS must be ordered for stationary source facilities that

93 generate 100,000 tons of CO2-e emissions each year, and suggested that only CAFOs generating

that level of emissions require an EIS. While MCEA disagrees with that standard, it likely is met

here if MPCA performs a full inventory of the Project’s GHG emissions. The EAW shows that the

Project will produce 76,106 tons of CO2-e GHGs from only three categories: manure storage, enteric fermentation, and manure land application.94 As even MPCA recognizes, this is not a

complete inventory of emissions.95 It may not even be half of the Project’s emissions, considering that GHGs from just one category excluded from MPCA’s inventory—feed production and processing—may account for up to 45% of the Project’s total emissions.96 If all the emissions

generated by the Project—from construction, land-use change, onsite fuel combustion, electricity

generation, farm vehicles and transportation, refrigeration and air conditioning, and feed

93 Minn. R. 4410.4300, subp. 15(B). 94 EAW at 21. 95 Id. 96 ICF Int’l, supra note 24.

25 production and processing—were counted, the number almost certainly would be over 100,000

tons. In that case, MPCA should unquestionably order an EIS.

But even considering only the incomplete 76,106 tons listed by MPCA, the Project clearly

still has the potential for significant environmental effects based on its size and the scale of its

emissions. The Project will be the fourth largest CAFO in Minnesota—with its number of animal

units exceeded only by three other Riverview dairy farms.97 It will be about 45 times the size of

the average Minnesota dairy farm.98 And its GHG emissions reflect the scale of the Project. Once it is operating, the Project will be the 59th largest emitter of GHGs in the state,99 with emissions

equivalent to adding 16,442 passenger vehicles to the state’s roads.100 It will produce more

emissions than some power plants, including the Cannon Falls Energy Center, a 357 MW gas plant

in Cannon Falls; the Blue Lake Power Plant, a 545 MW gas and oil plant in Shakopee; and the

Key City/Wilmarth Plant, a natural gas and refuse-derived fuel plant in Mankato.101 It will emit

more GHGs than the entire Mayo Medical Center in Rochester, and approximately the same

amount as two ethanol plants, (Bushmills Ethanol, Inc. in Atwater, Minn. and Highwater Ethanol,

LLC in Lamberton, Minn.).102 With this scale of emissions, it simply cannot be true that there is no potential for the environment to be significantly affected by the Project.

97 MPCA & Minnesota Geospatial Commons, Feedlots in Minnesota, https://gisdata.mn.gov/dataset/env- feedlots [hereinafter, “Minnesota Feedlot Information”]. 98 Id. A calculation from this data shows that the average number of animal units of cows on a Minnesota farm is 229. This makes Riverview 45 times the size of the average dairy farm. 99 EPA, 2018 Greenhouse Gas Emissions from Large Facilities, https://ghgdata.epa.gov/ghgp/main .do?site_preference=normal# [hereinafter, “Minnesota GHG Emitters”]. 100 EPA, Greenhouse Gas Equivalencies Calculator (March 2020), https://www.epa.gov/energy /greenhouse-gas-equivalencies-calculator 101 Minnesota GHG Emitters, supra note 99; Wikipedia, List of Power Stations in Minnesota (Sept. 2020), https://en.wikipedia.org/wiki/List_of_power_stations_in_Minnesota. 102 Id.

26 This is particularly clear when looking at the Project’s emissions in relation to the state’s

NGEA goals, which call for a 30% reduction in emissions from 2005 levels by 2025.103 In 2005,

emissions from animal agriculture totaled 9.8 million tons.104 To meet the 2025 goal, emissions

from this sector would need to fall 30% to 6.8 million tons. As of 2016, however, emissions from

animal agriculture had actually increased by about 7%, to 10.5 million tons.105 Clearly, steep

reductions are needed in emissions from animal agriculture to reach the NGEA goal. But the

Project by itself actually increases emissions by nearly a whole percentage point above 2005 levels.

Certainly, the addition of 76,106 tons of emissions to this sector is significant when animal agriculture needs to reduce emissions by 3.7 million tons in the next five years.

In sum, if this Project, as the fourth largest CAFO in the state, is not considered significant, it is unlikely any dairy farm could ever reach that standard—despite the clear effects large farms have on Minnesota’s environment. A Project of this size, emitting so many GHGs, undoubtedly has the potential to affect the environment by contributing to climate change, which means more dangerously hot days, intense storms, flooding, and the loss of native plant, animal, and aquatic species.106 So that the full effects of the Project on the environment can be determined, MPCA

must order an EIS unless Riverview adopts sufficient mitigation measures to considerably reduce

its GHG emissions.

103 Minn. Stat. § 216H.02. 104 MPCA, Greenhouse gas emissions data, https://www.pca.state.mn.us/air/greenhouse-gas-emissions- data. 105 Id. 106 Climate Change in Minn., supra note 71.

27 II. MPCA MUST RETURN THE EAW TO RIVERVIEW FOR SUPPLEMENTATION OR ORDER AN EIS SO THAT THE RESULTS OF AN AQUIFER TEST MAY BE INCLUDED

The EAW also is incomplete because it does not include the results of an aquifer test that

would reveal the effects of Riverview’s proposed wells on the surrounding environment. This

failure to include an aquifer test violates both a specific state statute and the Minnesota Rules regarding the purpose of an EAW. Without detailed information about the effects of Riverview’s plan to pump more than millions of gallons of water from an aquifer already used by many people,

MPCA cannot determine whether the Project has the potential for significant environmental

effects.

A. The EAW Does Not Include The Results Of An Aquifer Test Accurately Analyzing Riverview’s Proposed Water Appropriations.

Dairy farms like the Project are extremely water-intensive. Just a single milk cow drinks

around 30 gallons of water per day,107 and the Project will have 10,500 cows,108 two barns and a

milking parlor, and two employee apartment buildings.109 Riverview has anticipated it will need

120 million gallons per year for agricultural uses, in addition to another approximately 1 million

gallons per year from a potable water well for the Project’s apartment buildings.110 The agricultural water will come from three production wells, which will be used for drinking water for livestock, cleaning, sprinkler systems for cattle cooling, and restroom facilities, and the potable water will come from a fourth well.111 When Riverview’s new wells are drilled, they will be added to 17

107 Belz, supra note 1. 108 EAW at 3. 109 Id. at 3-4. 110 Id. at 11. 111 Id. at 11.

28 known wells already within 1.5 miles of the Project, including three high-capacity wells that use more than 1 million gallons per year.112

To determine the effects of these wells on the local water supply, DNR conducted a preliminary aquifer test, pumping water at the rate of 380 gallons per minute for 21 days.113 After

DNR completed the test, water levels in the wells did not fully recover to pre-pumping levels, leading DNR to conclude that the aquifer recharge is slow.114 DNR concluded that long-term pumping at the test rate could reduce aquifer water levels in a connected shallow aquifer to a level that “may not be sustainable.” 115 In addition, DNR concluded that Riverview’s wells could conflict with nearby domestic and irrigation wells, and that the cumulative effects of water removal from the aquifer “could approach or exceed safe yield thresholds.”116

In response to these conclusions, Riverview offered to limit the pumping rate for the agricultural wells to 320 gallons per minute, which would still allow it to withdraw the 120 million gallons per year needed from the agricultural wells.117 Although DNR stated that it will analyze the effects of the lower pumping rate during its consideration of Riverview’s requested water appropriations permit, no testing of the lower pumping rate was completed at the time MPCA noticed the EAW for comment.118 Accordingly, the EAW has no information about the effects of

Riverview’s planned water appropriation at the 320 gallons per minute rate on the aquifers, nearby wells, or surrounding ecosystems. DNR clearly still has concerns about Riverview’s wells, even at the lower pumping rate: DNR informed Riverview that DNR would likely require long-term

112 Id. at 12. 113 Id., Attach. 15 at 1. 114 Id., Attach. 15 at 1. 115 Id. at 27. 116 Id. at 11, Attach. 15 at 1. 117 Id. at 12, Attach. 15 at 1. 118 Id., Attach. 15 at 1.

29 groundwater level monitoring to ensure Riverview’s water appropriations were sustainable.119 But

the EAW contains no information about the sustainability of the Project’s planned appropriations.

B. The EAW Is Incomplete Without The Results Of The Aquifer Test, Which Must Be Included In The EAW Under Minnesota Law.

Because DNR has not completed the aquifer test analyzing Riverview’s new proposed pumping rate, the Project’s effect on the aquifers, nearby wells, or the surrounding environment is unknown. Under MEPA, however, the aquifer test should have been completed before MPCA released the EAW and its results should have been included in the EAW. Without it, the EAW is incomplete, for two reasons.

First, the MPCA needed to include the aquifer test results in the EAW because the Project will require a groundwater appropriation permit from DNR. For any project that may require such a permit, MEPA specifies that “the environmental assessment worksheet [must] include an assessment of the water resources available for appropriation.”120 This law, as explained by Rep.

Jean Wagenius, who supported its passage, was intended to ensure that DNR followed the law

requiring consideration of the sustainability of groundwater appropriations.121 Under Minnesota’s

Water Law, DNR may only issue permits for groundwater appropriation if DNR

determines that the groundwater use is sustainable to supply the needs of future generations and the proposed use will not harm ecosystems, degrade water, or reduce water levels beyond the reach of public water supply and private domestic wells. . . .122

Accordingly, MEPA requires that the EAW include an assessment of available water resources.

That does not mean merely identifying a nearby water resource; the EAW must actually assess

119 Id. at 12, Attach. 15 at 1. 120 Minn. Stat. § 116D.04, subd. 16 (emphasis added). Consistent with this requirement, the Minnesota Rules require that the EAW include “a quantification of physical characteristics and impacts” of the Project. Minn. R. 4410.1200. 121 Video conference conversation with Rep. Jean Wagenius (Aug. 24, 2020). 122 Minn. Stat. § 103G.287, subd. 5.

30 whether the water resource is available for appropriation by the Project, at the rates proposed for

the Project.123 And that assessment must determine whether the planned appropriation is

sustainable, including consideration of the appropriation’s effects on water levels, water quality,

nearby ecosystems, and the needs of future generations.124 This assessment cannot simply be

included in MPCA’s decision on the need for an EIS or in the DNR’s decision on a water

appropriations permit—according to the statute, MPCA must be include the analysis in the EAW

itself.125

The EAW, however, does not include an accurate assessment of the water resources that

are available for the Project’s use at its proposed pumping rate. The Project will require a massive

amount of water—about 121 million gallons per year, enough to supply about 1,105 households

for a year,126 or to fill 183 Olympic-sized swimming pools.127 DNR has already informed

Riverview that its previous proposed pumping rate likely was unsustainable and would deplete the

aquifer and potentially its neighbors’ wells.128 Even with the reduced pumping rate, DNR is concerned about the sustainability of Riverview’s water appropriation.129 And yet, the EAW

includes no assessment of the effects of the proposed 320 gallons per minute pumping rate, or the

sustainability of appropriating 121 million gallons of water per year. Nor does it assess the

appropriation’s effects on water levels, water quality, nearby ecosystems, or the needs of future

generations, as Minnesota law requires. This information will be included in the aquifer test that

123 Minn. Stat. § 116D.04, subd. 16. 124 Minn. Stat. § 103G.287, subd. 5. 125 Minn. Stat. § 116D.04, subd. 16. 126 The average American family uses around 300 gallons of water per day. Environmental Protection Agency, WaterSense, https://www.epa.gov/watersense/how-we-use-water. 127 An Olympic swimming pool holds approximately 660,000 gallons of water. Wikipedia, Olympic-size swimming pool, https://en.wikipedia.org/wiki/Olympic-size_swimming_pool. 128 EAW at 27, Attach. 15 at 1. 129 Id. at 12.

31 will be undertaken as part of DNR’s water appropriations permit process, but it is not included in the EAW. Without the aquifer test—or some other assessment of the effects of Riverview’s proposed wells, pumping at the actual proposed rate—the EAW is incomplete.

Second, MPCA must include the results of the aquifer test in the EAW because without them, MPCA cannot properly determine whether the Project has the potential for significant environmental effects, as required by MEPA.130 To make that decision, MPCA must consider the effects of pulling 121 million gallons of water from the ground every year in an area with 17 existing wells, and where the DNR has already determined a higher rate of water appropriation is likely unsustainable. But MPCA cannot determine what the effects of this appropriation will be— and thus whether the Project has the potential for significant environmental effects—without evaluating the aquifer test. In addition, if DNR does determine the lower pumping rate is still unsustainable, Riverview may have to make plans for obtaining additional water for the Project— perhaps by building a pipeline or importing water. The environmental effects of these contingency plans would not be included in any EAW or provided for public comment. Without accurate information about where Riverview will obtain the Project’s water, and the sustainability of those efforts, the EAW is incomplete.

Even if MPCA includes information about the aquifer test in its later findings of fact and the decision on the need for an EIS, this does not satisfy MPCA’s obligations under MEPA. MEPA plainly requires that the analysis be included in the EAW.131 The findings of fact and decision on the need for an EIS are not the EAW. In addition, such an action entirely undermines the purpose of the Rules requiring notices and comment periods for an EAW. The Rules require that the

130 Minn. Stat. § 116D.04, subd. 1a(c), subd. 2a(a) (explaining that the purpose of an EAW is to determine whether a project has the potential for significant environmental effects, in which case an EIS must be ordered). 131 Minn. Stat. § 116D.04, subd. 16.

32 availability of the EAW be widely publicized132 and that a 30-day comment period be set to allow

the public to comment on the EAW.133 Even if MPCA considers the aquifer test in deciding whether an EIS is needed, the public has not been able to review and comment on the aquifer test, and MPCA will be missing that critical public commentary when making its decision. Under these circumstances, MEPA regulations require that MPCA declare the EAW incomplete without the aquifer test, return the EAW to Riverview for the addition of information from the aquifer test, and then re-issue the revised EAW for a new comment period.134 Alternatively, MPCA could order

an EIS that would include the aquifer test information.135

In sum, until DNR completes the aquifer test and evaluates the results, and MPCA analyzes

the potential for significant environmental effects from the proposed water withdrawal in the

EAW, MPCA has not complied with its MEPA obligations. And until the aquifer test is performed

at the actual rate to be used at the Project’s wells, the effects of these high-capacity wells on the

aquifers, nearby wells, and the surrounding ecosystems will be unknown. MPCA must ensure the

aquifer test is included in the EAW for public review and comment, not merely considered at a

later time by MPCA or DNR.

C. The EAW Fails To Consider Potential Mitigation Measures For Conserving Or Reusing Water.

In addition to failing to assess Riverview’s proposed water appropriation, the EAW also

fails to analyze potential ways for Riverview to conserve or reuse water. MEPA not only requires

such review,136 it will also help Riverview create a Project that is more efficient, sustainable, and

132 Minn. R. 4410.1500. 133 Minn. R. 4410.1600. 134 Minn. R. 4410.1400(B). 135 Minn. R. 4410.1700, subd. 2a(A). 136 See EAW at 30 (requiring discussion of “any alternatives or mitigative measures that have been or may be considered for these impacts and issues…”). See also Section I.C.1, supra, for legal analysis of the

33 resilient. At the same time, these measures would conserve water in the aquifer, and help address

Riverview’s potential problem with insufficient water supply.

First, the EAW could include a discussion of measures that would ensure the Project is as

water-efficient as possible. Although dairy farming is very water intensive, by adopting water

efficiency measures, farmers can reduce their water use considerably—as much as 20% according

to one source—without affecting milk production.137 As just a few examples, to save water dairy

farmers can install frost-free or insulated water troughs, so that troughs do not need to continuously

flow in winter months; recycle water used in the plate cooler for cooling milk; use water-efficient sprinklers to cool the animals; and monitor water usage using a meter to quickly identify any leaks.138

Second, the EAW could explore the potential for building water recapturing systems. In

particular, a rainwater harvesting system could provide Riverview with millions of gallons of water

per year, decreasing the amount of water it needs to pump from the aquifer and helping make its

wells more sustainable. Rainwater harvesting systems capture, divert, and store rainwater from

rooftops, so that the water can later be used for purposes such as irrigation, washing, and cooling

systems.139 Typically, systems include a collection system on roof surfaces and gutters, filters and

diverters to remove debris, a storage tank, a water treatment system, and a pump to move water to

where it is needed.140 While costs for such systems vary, large rainwater harvesting systems can

necessity of including mitigation measures in an EAW, both those that will be used and those that could be used at a project. 137 Dave Natzke, 10 simple ways to reduce dairy water use, PROGRESSIVE DAIRY (May 22, 2017), https://www.progressivedairy.com/topics/management/10-simple-ways-to-reduce-dairy-water-use#:~:text =Depending%20on%20the%20season%2C%20cows,or%205%2Dto%2D1. 138 Id. 139 Office of Energy Efficiency & Renewable Energy, Water-Efficient Technology Opportunity: Rainwater Harvesting Systems, https://www.energy.gov/eere/femp/water-efficient-technology-opportunity-rainwater -harvesting-systems. 140 Id.

34 pay for themselves in the costs of saved water, often in just a few years.141 At the Project, if a rainwater harvesting system were installed on the roofs of the barns, covered vehicle drive, shop, milking parlor, feed shed and straw bale sheds, the roof area for collection totals more than

1 million square feet.142 Using the Rainwater Harvesting Tool from the U.S. Department of

Energy’s Office of Energy Efficiency & Renewable Energy, it appears that Riverview could

capture 10.3 million gallons of water annually using a rainwater harvesting system.143 Riverview

could use this water for non-drinking purposes, such as in the cattle cooling sprinkler systems, or

for cleaning, while decreasing Riverview’s appropriations from the aquifer by about 8%.

In addition to rainwater reuse systems, Riverview could also explore the potential for

reusing stormwater or foundation water. Stormwater, or runoff from ground-level impervious

surfaces, can also be collected and reused for non-drinking purposes, although it often needs more

treatment than rainwater from rooftops.144 Several factors at the Project appear to make a

stormwater reuse system worth exploring. First, the Project will create 110 acres of new

impervious surface, which will generate a significant amount of stormwater runoff that could be

reused.145 Second, Riverview is already required to collect, filter, and treat the runoff in permanent

stormwater runoff basins.146 Instead of then discharging the water, however, it may be possible for

Riverview to reuse this water (potentially with additional treatment), and thereby reduce its water

141 The Renewable Energy Hub, Rainwater Harvesting, https://www.renewableenergyhub.us/rainwater- harvesting-information/rainwater-collection-cost.html. 142 EAW at 3 (listing roof area that adds up to 1,048,160 sq. ft.). 143 Office of Energy Efficiency & Renewable Energy, Rainwater Harvesting Tool, https://www. energy.gov/eere/femp/downloads/rainwater-harvesting-tool. 144 Office of Energy Efficiency & Renewable Energy, Best Management Practices #14: Alternative Water Sources, https://www.energy.gov/eere/femp/best-management-practice-14-alternative-water-sources [hereinafter “Alternative Water Sources”]. 145 EAW at 5. 146 Id. According to the plan in the EAW, rainwater from roofs would run off into the stormwater system. Instead of having two separate systems to collect rainwater from roofs and stormwater from ground-level impervious surfaces, it may be most cost-efficient to allow all runoff to collect in the stormwater ponds and treat it there. The EAW could examine these possibilities.

35 consumption from the aquifer. Similarly, Riverview could explore a system for reusing foundation

water—water pumped out of the ground near foundations of buildings—to reuse the water drained away from its liquid manure storage area basins.147

In total, these efforts could save Riverview from pumping tens of millions of gallons of water from the aquifer each year. Particularly considering the concerns about whether Riverview’s proposed rate of water usage is sustainable, the EAW is incomplete without this analysis. To remedy this additional issue, MPCA should supplement the EAW or order an EIS so that water conservation mitigation measures can be included.148

III. MPCA MUST SUPPLEMENT THE EAW OR ORDER AN EIS TO ANALYZE THE CUMULATIVE EFFECTS OF RIVERVIEW’S MANURE ON WATER QUALITY

Finally, the EAW is incomplete because, in violation of the Minnesota Rules, it fails to analyze the Project’s cumulative potential effects. Specifically, the EAW avoids any true analysis of the effect of applying manure from 10,500 dairy cows in Norman County, a region that already has numerous feedlots and contaminated waters. To comply with MEPA, MPCA cannot simply proclaim that the Project will have no cumulative effects on water quality—it must take a hard look at the potential for significant environmental effects. Thus far, it has not done so.

A. The EAW Shows The Project Will Add 86 Million Gallons Of Manure To Watershed Already Containing Impaired Waters.

Riverview expects its 10,500 dairy cows to produce a truly extraordinary amount of manure—86 million gallons annually,149 which comparable to the amount of waste produced by

all of the people in Minneapolis and Bloomington combined. 150 Riverview will sell the manure to

147 Id. (describing drain tile around liquid manure storage areas); Alternative Water Sources, supra note 144. 148 Minn. R. 4410.1700, subd. 2a. 149 EAW at 7. 150 See Ron Fleming & Marcy Ford, Human Versus Animals-Comparison of Waste Properties (2001), https://www.ridgetownc.com/research/documents/fleming_huvsanim0107.PDF (finding 20 dairy cows

36 farmers to use as fertilizer, and spread over nearly 13,000 acres (or about 20 square miles) of

farmland in Waukon, Fossum, Wild Rice, and Strand townships in Norman County.151 Because

Riverview will sell the manure, Riverview will not directly control manure application. Notably,

Riverview is not the only large animal feedlot in Norman County. Currently, there are 57 registered

feedlots in the county,152 and the Barrick Farms CAFO, a feedlot with 16,000 hogs that is expected

to generate approximately 13 million gallons of manure each year in a nearby township, is

currently under ’consideration by MPCA.153 This manure will be spread on fields in townships adjoining those where Riverview’s manure will be applied.154

This 86 million gallons of manure will be added to an area where surface waters are already

contaminated with the kinds of pollutants contained in manure runoff. Both the Project itself and

all of the manure application sites are within the Wild Rice River Major Watershed, and the Wild

Rice River and multiple tributaries within its watershed are already impaired by a number of

pollutants.155 The Wild Rice River is listed as impaired due to high turbidity and E.coli; Garden

Slough is impaired due to poor fish bioassessment scores; Mashaug Creek is impaired for fish

bioassessment scores and E.coli; and Marsh Creek is impaired due to high turbidity.156 All three

produce approximately the same waste as 1,000 humans); Minnesota State Demographic Center, Our Estimates, https://mn.gov/admin/demography/data-by-topic/population-data/our-estimates/ (listing the 2019 population of Minneapolis as 435,885 residents and Bloomington as 90,271 residents). 151 EAW at 7. 152 Id. at 25. 153 MPCA, Barrick Family Farms, LLP—Lockhart 25 Environmental Assessment Worksheet 11 (July 20, 2020), https://www.pca.state.mn.us/sites/default/files/p-ear2-174i.pdf [hereinafter “Barrick Farms EAW”]. 154 Id. 155 EAW at 23. 156 Id. at 25-26.

37 of these impairments—E.coli,157 high turbidity,158 and poor fish bioassessment scores159—can be

caused or worsened by manure runoff. Currently, there is no Total Maximum Daily Load

(“TMDL”) Report for these water bodies, but one is being created and MPCA expects to receive

final approval from EPA for it later this year.160

B. The EAW Is Incomplete Without A Full Analysis Of The Cumulative Effects Of The Manure From All Feedlots In The Region.

Despite these facts, MPCA’s EAW fails to consider the cumulative effects of adding 86

million gallons of manure to fields in Norman County and the impaired Wild Rice River watershed,

particularly because other feedlots already exist or have been proposed in the county. Minnesota

Rules require that an agency consider “cumulative potential effects” in determining whether a

project has the potential for significant environmental effects.161 This means the agency must

analyze “the effect on the environment that results from the incremental effects of a project in

addition to other projects in the environmentally relevant area that might reasonably be expected

to affect the same environmental resources, including future projects.”162 As the Rules note, even

projects that are individually minor can create significant cumulative effects over time.163 To

comply with the Rules, the Alternative EAW Form for Animal Feedlots calls for an analysis of

“any cumulative impacts caused by the project in combination with other existing, proposed, and

reasonably foreseeable future projects that may interact with the project . . . in such a way as to

157 Clean Lake Alliance, E. Coli and Beach Pathogens, https://www.cleanlakesalliance.org/e- coli/#:~:text=coli%20levels%20can%20occur%20for,our%20beaches%20via%20urban%20areas. https://www.cleanlakesalliance.org/?s=beach+pathogens 158 Iowa State University, Soil erosion and water quality, https://crops.extension.iastate.edu/ encyclopedia/soil-erosion-and-water-quality. 159 Anthony Meusch, University of Nebraska-Lincoln, Effects of Manure of Fish Populations (Dec. 3, 2019), https://water.unl.edu/article/animal-manure-management/effects-manure-fish-populations. 160 EAW at 26. 161 Minn. R. 4410.1700, subp. 1. 162 Minn. R. 4410.0200, subd. 11a. 163 Id.

38 cause cumulative impacts.”164 Surface water quality is explicitly listed in the form as an example of a cumulative effect.165

The EAW, however, contains only a superficial and incomplete cumulative effects analysis regarding manure application in an already impaired watershed. The EAW asserts—in an entirely conclusory manner—that the Project will not have any effects on surface waters because the

Project itself will meet a zero-discharge standard and the farmers applying the manure will use best management practices (“BMPs”) and apply manure at agronomic rates.166 In fact, the EAW asserts, the acres where Riverview manure is spread will now have more oversight of its fertilizer application than before.167

This is an entirely insufficient analysis. It does not examine the incremental effects the

Project will have on already-impaired surface waters in combination with the other feedlots in the area. First, the analysis does not seriously consider that the region’s waters are already impaired, and that runoff from the 86 million gallons of manure is almost certain to worsen the E.coli, turbidity, and poor fish bioassessments already present in the watershed, while adding other hazardous pollutants. Merely asserting that there will be no effects from such a massive injection of manure into the county does not qualify as a legitimate analysis. Manure runoff is well known to contaminate surface waters with nitrate, phosphorus, ammonia, and fecal coliform bacteria (like

E.coli), which can make water undrinkable, harm fish, cause algal blooms, and destroy aquatic habitats.168 More than half of all Minnesota’s surface waterbodies do not meet basic water quality

164 EAW at 25. 165 Id. 166 Id. at 26. 167 Id. at 26-27. 168 Mary Berg & Miranda Meehan, North Dakota State University, Environmental Implications of Excess Fertilizer and Manure on Water Quality (Oct. 2017), https://www.ag.ndsu.edu/publications/ environment- natural-resources/environmental-implications-of-excess-fertilizer-and-manure-on-water-quality#:~:text= Nutrients%20from%20manure%20and%20fertilizers,through%20runoff%20and%20soil%20erosion.&tex

39 standards, and non-point source pollution, like manure runoff from feedlots and fields, is

responsible for about 85% of water pollution.169 Following BMPs can reduce nutrient and

sediment runoff, but scientific studies do not show BMPs eliminate water pollution in all

instances.170 And in this case, Riverview is selling the manure, not applying the manure itself.

Therefore, Riverview cannot guarantee that farmers will follow BMPs. In addition, while MPCA

may hope that Riverview will in fact be a zero-discharge facility, this hope cannot guarantee that

no discharges will occur, whether by accident, through negligence, or because of unplanned for

extreme weather events. Presumably, every CAFO is permitted with the intent that farmers will

minimize runoff from the facility and fields through the use of BMPs. But the increasing pollution

of Minnesota’s rivers and lakes with pollutants from fertilizer, such as nitrates, particularly in areas

of the state with more CAFOs, shows that despite these permits, these facilities continue to

contaminate Minnesota’s waters.171 Yet, MPCA entirely fails to analyze how Riverview’s massive

manure production may incrementally affect Norman County’s waters in the EAW.

Second, although the EAW mentions that there are 57 other registered feedlots in the county, MPCA makes no attempt to examine how the combination of manure from all of these

feedlots will cumulatively affect the already-impaired surface waters. In fact, the EAW provides

no information whatsoever about those feedlots—how much manure they produce, where farmers

t=Runoff%20water%20from%20fields%20with,contaminating%20streams%2C%20wetlands%20and%20 lakes. 169 Sarah Graddy, Environmental Working Group, EWG Investigation: Manure Overload Threatens Water in Minnesota’s Farm Country (May 28, 2020), https://www.ewg.org/release/ewg-investigation-manure- overload-threatens-water-minn-farm-country. 170 See Minnesota Department of Agriculture, Manure Conservation Practices, https://www.mda.state. mn.us/protecting/cleanwaterfund/toolstechnology/runoffrisk/aboutrraf/manureconsprac (explaining that the environmental benefits of best management practices include “reducing nutrient and sediment runoff”). 171 Sarah Porter, Environmental Working Group, Tap Water for 500,000 Minnesotans Contaminated with Elevated Levels of Nitrate (Jan. 14, 2020), https://www.ewg.org/interactive-maps/2020_nitrate_in_ minnesota_drinking_water_from_groundwater_sources/.

40 apply that manure, whether there is overlap with the fields receiving Riverview manure, whether

farmers use BMPs, and whether manure from those feedlots contributes to the impairment of

Norman County’s waters. Even though MPCA is currently evaluating a new 16,000-hog CAFO,

which will add another 13 million gallons of manure to the county in addition to Riverview’s 86

million gallons, MPCA does not mention the Barrick Farms project. Because most manure cannot

be transported very far cost effectively,172 the manure from all of these feedlots is likely to stay in

the county. For a proper cumulative effects analysis, MPCA must examine “other projects in the

environmentally relevant area that might reasonably be expected to affect the same environmental

resources,”173 and here that means other feedlots and how adding nearly 100 million gallons of

manure will impact a county where, presumably, farmers already apply a large amount of manure

to fields. But MPCA failed to analyze any other feedlots in the EAW.

In sum, MPCA’s “cumulative effects” analysis is not an analysis—it consists of wishful

thinking regarding the incremental effects Riverview’s manure will have on water quality, along

with willful blindness regarding the effects of the region’s feedlots in the aggregate. MPCA’s

analysis wholly fails to meet the standard in the Minnesota Rules, which require MPCA to

thoughtfully and thoroughly analyze the effects of manure from all the feedlots in the region will

have on Norman County’s already impaired waters when combined with 100 million gallons of

additional manure. Because of this failure, the EAW is inadequate, and to comply with the

Minnesota Rules MPCA must either supplement the EAW to add the missing information or order

an EIS.174

172 Daniel Anderson, Iowa State University Extension and Outreach, The Manure Scoop (Dec. 4, 2014), http://themanurescoop.blogspot.com/2014/12/how-far-can-i-afford-to-haul-my-manure.html. 172 Minn. R. 4410.1700 173 Minn. R. 4410.0200, subd. 11a. 174 Minn. R. 4410.1700, subd. 2a.

41 CONCLUSION

Riverview’s proposed Project is not simply another dairy farm. It is a giant CAFO that has the potential to radically effect the air, water, and earth around it. Yet its EAW fails to fully study those potential effects. To comply with Minnesota law, the EAW must be revised in three ways:

(1) to fully analyze the GHG emissions expected from the Project, their effects on climate change, and potential mitigation measure that could be used to reduce those effects; (2) to include the results of an aquifer test that will determine the effects of Riverview’s high capacity wells; and (3) to perform a cumulative potential effects analysis of adding the Project’s manure to an already impaired watershed. Because of all the information missing from the EAW, MPCA currently cannot make an informed decision regarding the Project’s potential for significant environmental effects. Accordingly, MCEA asks that MPCA order an EIS, or at a minimum, require the supplementation of the EAW, so that the full effects of one of Minnesota’s largest CAFOs can be fully studied.

Respectfully submitted,

s/Joy R. Anderson Joy R. Anderson Senior Staff Attorney Minnesota Center for Environmental Advocacy 1919 University Avenue West, Ste. 515 Saint Paul, MN 55104 [email protected]

42 81

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 3:01 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Sylvia. I live in Alexandria , MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Sylvia Luetmer 2204 E Lk Jessie Rd SE Alexandria, MN 56308-8925 82

From: Kestner, Nathan (DNR) Sent: Friday, October 16, 2020 3:07 PM To: Peterson, Charles V (MPCA) Cc: Prososki, Joshua (DNR) ; Thibodeaux, Jaime (DNR) ; Anthonisen, Erik (DNR) ; Considine, Ellen (DNR) Subject: Waukon Dairy - EAW Comments

Chuck-

DNR’s comments on the Waukon Dairy EAW are attached.

Nathan Kestner NW Regional Manager | Division of Ecological and Water resources Minnesota Department of Natural Resources 2115 Birchmont Beach Rd.NE Bemidji, MN 56601 Phone: 218-308-2626 Fax: 218-755-4066 Email: [email protected] mndnr.gov

From: Prososki, Joshua (DNR) Sent: Thursday, October 1, 2020 3:57 PM To: Peterson, Charles V (MPCA) Cc: Thibodeaux, Jaime (DNR) Subject: Waukon Dairy Aquifer Test Results

Hello Chuck,

DNR has completed the analysis of the aquifer test performed by Riverview LLP for the proposed Waukon Dairy facility and associated Water Appropriation Permit application. For the life of the dairy (20 years), the aquifer appears to be able to supply water for the proposed project. However, there is concern with sustainability when factoring in nearby irrigation appropriators. DNR staff will continue to work with Riverview LLP on concerns regarding nearby domestic wells, appropriators and aquifer sustainability.

If you need any more information, please let me know.

Thank you,

Joshua Prososki Groundwater Appropriation Hydrologist | Ecological and Water Resources Minnesota Department of Natural Resources 1509 1st Ave. North Fergus Falls, MN, 56537 Phone: 218-671-7944 Cell: 218-770-2149 Email: [email protected] mndnr.gov

Ecological and Water Resources 2115 Birchmont Beach Rd NE Bemidji, MN 56601

October 16, 2020

Charles Peterson MPCA Project Manager 520 Lafayette Road North St. Paul, MN 55155

EAW, Waukon Dairy, Norman County

Mr. Peterson,

This comment letter is in addition to DNR comments sent to date including the September 16th letter and October 1, 2020 correspondence from Josh Prososki regarding the Riverview Waukon Dairy aquifer test results. Through those communications the DNR expressed concerns including the cumulative sustainability of Riverview’s proposed and existing irrigation use.

Since our October 1, 2020 communication, the DNR has received data that shows that water use conflict would result from existing permitted use and Riverview’s proposed use. Minnesota Administrative Rule 6115.0740 defines a water use conflict as occurring “where the available supply of waters of the state in a given area is limited to the extent that there are competing demands among existing and proposed users which exceed the reasonably available waters”. The DNR has identified safe yield thresholds for the source aquifer and the shallow buried aquifer at the Riverview Waukon Dairy site. The data we now have shows that existing and proposed use would exceed the aquifer’s safe yield.

Minnesota Administrative Rule 6115.0740 also describes the process for resolving water use conflicts. The rule states that existing and proposed users must develop and submit a plan for proportionate distribution of the available water. The rule requires that DNR approve the plan. If the proposed and existing permittees cannot reach resolution regarding allocation of the available water, the DNR has the authority to develop a new plan, modify the proposed plan, and issue new permits and amend existing permits based on that plan. Options for resolving the conflict include, but are not limited to: modifying existing and proposed appropriations, restricting the timing of withdrawals, and seeking alternative water supplies. The process to resolve a conflict is collaborative, the outcome is uncertain, and it will take time. The DNR is now facilitating discussions among the existing and proposed users. In summary, we have identified that a water use conflict exists, and Administrative Rule 6115.0740 provides the DNR with a process and regulatory authority to ensure that an aquifer’s safe yield is not exceeded. Please contact area groundwater appropriations hydrologist Josh Prososki at 218-770-2149 or [email protected] with question about our review or with permit related questions. Thank you.

Sincerely,

Nathan Kestner

NW Regional Manager | DNR Division of Ecological and Water resources

CC: Jennifer Rose, Groundwater Specialist Josh Prososki, Groundwater Appropriation Hydrologist Jaime Thibodeaux, Environmental Assessment Ecologist

Equal Opportunity Employer 83

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 3:10 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Julia. I live in Finland, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion. I live on a small farm myself and I am greatly saddened to see the negative environmental and social impacts of the increase of large-scale agriculture, specifically in dairy, on the health and economic vitality of our local communities. We need to value small and mid scale farmers who use responsible practices and keep them on their land.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Julia Kloehn 5879 Nikolai Rd Finland, MN 55603-4047 84

-----Original Message----- From: [email protected] Sent: Friday, October 16, 2020 3:15 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Jim. I live in Caledonia, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

I am a retired UM Extension Professor in Dairy. I obviously support dairy farms of all sizes if they operate without impacting the environment, people and the rural landscape in a negative way. We need to determine that and that is part of what you are tasked to do. I realize that you do not assess the sociological impacts of such projects directly.

That being said, the dairy industry as a whole is working towards being carbon neutral by 2050. We need to be moving on a direct path to that. The importance of an EIS falls within the scope of this and I feel that it should be addressed as part of the EIS. I think it is important to do a Life Cycle Analysis of the operation from cropping and feed supply to manure management and milk hauling. Manure management is a big part of the carbon footprint; but it is also possible to move to carbon neutral.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Jim Paulson 10304 County 10 Caledonia, MN 55921-8615 85

From: Brady Janzen Sent: Friday, October 16, 2020 3:44 PM To: Peterson, Charles V (MPCA) Subject: Waukon Dairy EAW

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Hi Chuck,

Please find attached a letter from Riverview, which is supported by a letter from Barr Engineering, regarding potential concerns with respect to groundwater at Waukon Dairy.

Thank you,

Brady Janzen Riverview, LLP office: 320.392.6764 cell: 320.349.0318 riverviewllp.com 26406 470th Avenue, Morris, MN 56267 Office: (320) 392-5609 Fax: (320) 392-5319 ______

October 16, 2020

Minnesota Pollution Control Agency Attn: Charles Peterson 520 Lafayette Road N St. Paul, MN 55155-4194

RE: Waukon Dairy Environmental Assessment Worksheet (“EAW”)

Mr. Peterson,

We write with respect to the potential groundwater concerns raised by the proposed water appropriation at Waukon Dairy. Specifically, the concerns touched on in the Minnesota Department of Natural Resources (“DNR”) Groundwater Technical Memo dated 7/31/2020 (“DNR Memo”), namely: (1) long-term sustainability of the aquifer, (2) the potential for well interference, and (3) the potential for water use conflict.

The DNR Memo also stated that Riverview proposed a reduced pumping rate1 and that long- term groundwater level monitoring would likely be recommended to prevent the exceedance of aquifer safe yield. The DNR Memo goes on to state that DNR “will conduct additional analysis to ensure that safe yield thresholds are protected….”

Since publication of the DNR Memo, Riverview has continued to work with the DNR on the groundwater appropriation permit process. This work has been concurrent with preparation and publication of the EAW, and it involved development of a final Aquifer Test Report by DNR, dated 9/24/2020 (“DNR Report”).2 The DNR Report identifies concerns similar to those noted in the DNR Memo, but it goes on to provide specific and targeted technical recommendations to mitigate the identified concerns.

The technical recommendations in the DNR Report are made to the DNR’s Area Groundwater Appropriation Hydrologist for the development of permit conditions for Waukon Dairy’s water appropriation permit that will protect aquifer integrity, protect private water supplies, and minimize water use conflict. Riverview has discussed these recommendations with DNR and is actively assisting with their implementation.

1 Riverview proposed a reduced pumping rate to minimize Waukon Dairy’s potential impacts or contributions impacts in the area. 2 The executive summary and DNR recommendations from the DNR Report are attached. The full DNR Report can be made available to MPCA upon request. 1 The development of the DNR Report, its technical recommendations, and the forthcoming water permit conditions exemplifies the DNR’s permit program at work, as required by Minnesota law. Minn. Stat. § 103G.271 prohibits the appropriation of waters of the state without a permit, and such a permit may not be issued if the existing water resources are not adequate or if “the appropriation is not reasonable, practical, and does not adequately protect public safety and promote the public welfare,” Minn. R. 6115.0670, subp. 3.

This is also an example of the DNR’s ongoing public regulatory authority over water appropriation, which the MPCA must consider when evaluating Waukon Dairy’s EAW.

As you know, 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 action. Minn. Stat. §116D.04, subd. 1a. An EIS must be prepared when there is potential for significant environmental effects. Minn. Stat. §116D.04, subd. 2a(a)a. And when determining whether a project has the potential for significant environmental effects, the applicable regulations state that the responsible governmental unit (“RGU”) shall consider “the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority.” Minn. R. 4410.1700, subp. 7.

Minnesota courts have upheld an RGU’s reliance on ongoing public regulatory authority when measures exist that are specific, targeted, and certain to be able to mitigate the environmental effects in question. Citizens Advocating Responsible Development v. Kandiyohi County Board of Commissioners, 713 N.W.2d 817, 834-35 (Minn. 2006).

The DNR’s permit program clearly meets these criteria. And the Minnesota Court of Appeals has expressly stated that the DNR water appropriation permit process is a sufficient means of preventing and mitigating significant environmental effects. In re Environmental Impact Statement, 849 N.W.2d 71, 82 (Minn. Ct. App. 2014).

A brief analysis of selected DNR recommendations from the DNR Report illustrate the fact the Waukon Dairy’s permit conditions will be specific, targeted, and certain to mitigate the identified groundwater concerns. That is:

 Ongoing groundwater monitoring requirements and setting safe aquifer yield thresholds will effectively mitigate concerns over long-term sustainability of the aquifer. If DNR monitors water levels and can curtail or halt Waukon Dairy’s appropriation to prevent the exceedance of safe aquifer yields, no significant environmental impact to the aquifer can occur.  Implementing specific mitigative measures (e.g., lowering well pumps) for area wells determined to be at unacceptable risk of water supply problems will effectively mitigate well interference concerns.  Entering into an agreement with existing irrigators to limit or forgo future or existing irrigation activities will effectively mitigate concerns over water use conflict. In fact, the DNR permitting process has already identified the potential for impacts due to cumulative water uses in the area and will require mitigative measures to be taken consistent with Minnesota rules regarding water use conflicts before issuing Waukon Dairy a water appropriation permit.

The foregoing measures will be implemented through the DNR’s permit process, and they will prevent negative environmental effects before they occur. Therefore, it would be appropriate for MPCA to rely on DNR’s permit process in determining that no significant 2 environmental effects will occur from Waukon Dairy with respect to groundwater appropriation. See Friends of Twin Lakes v. City of Roseville, 764 N.W.2d 378, 382 (Minn. Ct. App. 2009) (“Caselaw supports the use of pre-existing regulatory oversight as a means of preventing significant environmental effects before they occur.”)

In addition, given the level of groundwater analysis that has already been completed, no other information with respect to groundwater could reasonably be gathered through further environmental review, which would render a positive declaration on the need for an EIS due to groundwater concerns useless and duplicative. Although we do not believe that the level of detail contained in the DNR Report is needed for the MPCA to make a negative declaration on the need for an EIS—and that the MPCA’s uniform precedent of deferring to DNR with respect to water appropriation issues in feedlot EAWs confirms that such detail is not needed—the fact that the DNR Report exists and provides a complete analysis of anticipated groundwater impacts and control measures underscores the point that further study of the potential water appropriation impacts from Waukon Dairy would be unnecessary and inappropriate.

Attached is a letter stating this final point by Mr. Jim Aiken of Barr Engineering who is an expert on hydrogeology and has reviewed the DNR Report and offers a detailed analysis on the subject, highlighting the fact that the DNR Report already provides groundwater analysis commensurate with that which would be found in an EIS.

Sincerely,

/s/ Brady Janzen

Brady Janzen Riverview, LLP

October 16, 2020

Mr. Charles Peterson Minnesota Pollution Control Agency Resource Managment and Assistance Division 520 Lafayette Road St. Paul, MN 55155

Re: Opinion on the Detailed Assessment of Groundwater Resources Conducted during the EAW for Waukon Dairy Facility (Site) Located in Norman County, MN

Dear Mr. Peterson:

I have been asked by Riverview LLP to provide an independent review and analysis of the aquifer testing and groundwater assessment conducted by the Minnesota Department of Natural Resources (MDNR) and enter my opinion regarding the report as a comment regarding the Environmental Assessment Worksheet (EAW) for the proposed Waukon Dairy Project.

1.0 Purpose This letter is intended to provide my analysis that concludes the MDNR’s assessment is consistent with standard of care ordinarily and customarily performed by professional hydrogeologists providing information that would typically be included in an environmental impact statement (EIS) for projects similar to the Site.

Specifically, based on the analysis presented in this letter, MDNR has already completed an exhaustive study on groundwater and potential environmental effects near the Site and provided recommendations for monitoring and mitigation to prevent those effects from occurring. Additional investigation in an EIS would merely restate and unnecessarily duplicate this information. Therefore, the conclusion presented is that there is no basis to require an EIS based on presumed effects related to groundwater use from the proposed Site.

2.0 Background By training and experience, I am an expert regarding environmental review for groundwater and natural resources issues, glacial geology, hydrogeology, water appropriations, and related hydrologic effects from pumping including well interference and impacts to groundwater dependent resources. I am also a licensed Professional Geologist in Minnesota. My credentials are summarized in Attachment A.

The project that is subject to environmental review is the Riverview LLP Waukon Dairy located in Norman County, MN. The MPCA is the Responsible Governmental Unit (RGU) for the project which is proposed as a 10,500-animal unit feedlot. The EAW is mandatory, but this is not a mandatory EIS category. In order to meet the watering needs for the facility, the proposer has indicated that a water appropriation permit will be required from the MDNR to allow appropriation of approximately 120 million gallons per year. The MNDR is the permit authority for water appropriations and has been assisting the proposer by establishing methods and procedures and conducting analysis of pumping test data. The MDNR has

Barr Engineering Co. 4300 MarketPointe Drive, Suite 200, Minneapolis, MN 55435 952.832.2600 www.barr.com

Mr. Charles Peterson October 16, 2020 Page 2

prepared an “Aquifer Test Report” dated September 24, 2020 for the Site that provides significant information about the potential effects of the proposed water appropriation. That report is in the public domain, and included within this document by reference. Relevant details are summarized in Attachment B.

3.0 Documents Reviewed and Method of Analysis I have reviewed the following documents for this project:

• The draft EAW available on the MPCA web site, with focus on the project description, groundwater resources and assessment of cumulative effects • The MDNR Preliminary Aquifer Test Report Memo (Rose, 7/31/2020; noted as EAW, Attachment 15 in Table 1) • The MDNR Final Aquifer Test Results Memo (Rose, 9/24/2020Noted as FTAR in Table 1 and summarized in Attachment B) • MDNR statute and rules regarding water appropriations permits and well interference (included in Table 1) • MN Rules for environmental review (in the public domain; included by citation) • MN Statutes for purpose of environmental review (in the public domain and reproduced below) • EQB Guidance (in the public domain)

In addition, I have relied on my own experience in environmental review and conducting groundwater investigations. The method used in my analysis is to:

1. Define the hypothetical scope of work that would be needed for an EIS to address groundwater appropriations at the Site, in order to augment the conclusion above based on the argument that no benefit would be obtained as it would be duplicative of the ongoing regulatory process required for water appropriations permitting. 2. If the scope of work already completed is similar to work that would reasonably be required for an EIS, then the conclusion must be that an EIS would be duplicative and the information needed by the MDNR for permitting either already exists or can be relatively easily obtained during the water appropriations permitting process.

Each step in the analysis is described below.

4.0 Evaluation My evaluation consists of four parts. These include:

• Review the aquifer testing results conducted by the MNDR and determine whether they are consistent with a professional standard of care • Define the scope of work that would be undertaken if an EIS were to be completed for the Site • Compare that scope to the work already completed by the MNDR • Evaluate whether the MDNR assessment would serve the intent of environmental review as defined by Minnesota Rules

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4.1 Part 1: Review the MDNR Aquifer Testing and Analysis

The MDNR describes its procedures, cites appropriate references for aquifer testing and prepared an analysis that are included herein by reference and are available on the MDNR website within its MDNR Permit and Reporting System (MPARS). A summary of the report, analysis, recommendations, and references are included in Attachment B. A summary of this information was included in the EAW and the complete report was finalized on September 24, 2020 and posted to MPARS.

I reviewed the report and information included in public record and find it to be consistent with the MNDR’s requirements for the contents of a permit application for water appropriations. The techniques used to collect and evaluate the data are consistent with those ordinarily used by hydrogeologists to investigate aquifer properties and assess potential environmental effects.

A key element of the MDNR work relative to environmental review is the use of forward simulation or “forecasting” of future potential effects. While it is my opinion that the MDNR’s forecast is conservative and may tend overestimate potential future effects, it does offer insight to sufficiently place permit conditions including monitoring and mitigation that will preclude the presumed future effects from being realized.

4.2 Part 2: Define a Proxy for the Scope of an EIS Because the goal of this letter is to evaluate the scope of work already completed against that which would hypothetically be included in a hypothetical EIS, there is a need to define the scope of aquifer- related topics that would hypothetically be studied.

Based on my experience, I have identified MDNR statute 103I.204 and MN Rules 6115.073 as a suitable proxy for the scope of an EIS that would be directed at addressing the potential effects of well interference on an aquifer. These statutes/rules address water appropriation permit and well interference requirements with criteria that approximate the typical scope that might be defined in an EIS to address the issue. These are the same the requirements that the MNDR is required by rule and statute to evaluate prior to issuing a permit and are presented in Table 1.

4.3 Part 3: Compare the Proxy Scope to the Work Already Completed As shown in Table 1, each of the requirements for an appropriation permit is listed in the leftmost column. For comparison, the contents and location of that information in the MDNR report included in the EAW are shown in the column in the middle of the table.

Every row in Table 1 in the “Already Addressed” column, with three exceptions, shows a YES in either green- or yellow-colored highlight. That is, every one of the 15 topics that could be included in an EIS has already been addressed by MDNR.

The exceptions relate to options for the MDNR to waive required elements in permitting, the rights of the proposer if the permit is denied, and finally provisions for agreements with other well owners that would need to meet the approval of the MDNR prior to permit issuance. None of these exceptions is relevant to study in the EIS. These rows instead are noted as “Not Applicable” in the context of this analysis.

While most of the topics shown in Table 1 are highlighted in green as completed, two are shown in yellow because it is not possible to complete them at this time. These two items are related to mitigation that the

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proposer can implement (or has already began to initiate) as part of the permitting process. Alternatively, by rule the MDNR can implement settlement to include mitigation as a permit condition. Mitigation is undertaken to remove the significance of an environmental effect so that presumed impacts are prevented. Although these items could be described in an EIS in conceptual terms, the details for mitigation are essentially the outcome of the MDNR’s regulatory authority that can only be accomplished as part of the permitting process. These two items are currently as complete as they could be under a presumed EIS.

For example, a potential mitigation action might be a contractual agreement where the proposer agrees to purchase and supply water from a public water provider to a neighboring well user if monitoring shows a likely decline in water level below the pump intake within the neighbor’s well. There isn’t any further environmental analysis that can be done to evaluate the potential for significant environmental (or other) effects in this case, because the potential effect would have been eliminated by the agreement between the two parties. Even if no agreement can be obtained, the MDNR can enforce a similar settlement as a permit condition under their existing authority. Therefore, there is nothing more to study in an EIS and ultimately could not be significant because mitigation is defined in MN Rules 4410.1700 as a reason for concluding there is no potential for significant environmental effect.

The mitigative actions that the proposer has already agreed to initiate (e.g., lowering pumping rate and consulting with Skaurud Grain Farms) is currently embodied in the MDNR report (Attachment B) and is available via the MDNR website (Attachment B, p 18).

4.4 Part 4: Evaluate the Work Completed by MDNR to the Objectives for Environmental Review I also evaluated the contents of the EAW and the MDNR work completed with respect to the objectives of environmental review included in MN Rules (4410.0300: Subp. 4). These rules state that the objectives of environmental review are to:

a. provide usable information to the project proposer, governmental decision makers, and the public concerning the primary environmental effects of a proposed project, b. provide the public with systematic access to decision makers, which will help to maintain public awareness of environmental concerns and encourage accountability in public and private decision making, c. delegate authority and responsibility for environmental review to the governmental unit most closely involved in the project, d. reduce delay and uncertainty in the environmental review process; and e. eliminate duplication.

My final evaluation compares the results shown in Table 1 with the criteria above:

a. The information contained in the EAW (including all MDNR reports in the public record) already provides usable information concerning the primary environmental effects. Conclusion: This standard is already met and would not be significantly enhanced by an EIS. b. The EAW has followed the procedures for public comment and engagement. This letter is being submitted as part of that engagement so that awareness and concerns have been vetted and addressed in the decision-making process.

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c. The designated RGU is the MPCA which has completed numerous EAWs on similar facilities and has historically deferred to the MDNR on groundwater issues for these types of projects. d. Timely completion of the review process and decision period for the EAW is forthcoming. e. Based on the information presented in Table 1, the goal of eliminating duplication would only be achieved if the MPCA issues a negative declaration on an EIS. This is because virtually all of the information needed by the MDNR to execute its ongoing permit authority has already been collected and all on-going issues (e.g., mitigation) have been well defined.

Conclusion This opinion is in regard to the specific environmental effects related to providing groundwater for the Site that would be supplied by pumping wells intended to supply water for maintaining livestock. The MDNR has completed a thorough study and testing of the aquifer below the proposed Site which has been identified in the EAW and available in the public record during the EAW comment period for the proposed Site. I reviewed this work and methodology and found it to be consistent with methods and the professional standard of care ordinarily performed an EIS and permitting of water appropriations in Minnesota.

Based on my review, the information collected to date on this topic is extensive and would not add further understanding of the potential for significant environmental effects related to pumping. In fact, the information and testing performed by the MDNR has fully met the objectives laid out by rule for environmental review, and already meets the requirements needed to make a permit application for water appropriations with the MDNR. Additional study and analysis would merely duplicate the work already performed. Duplication of this effort during an EIS would serve no benefit to the public and would be contrary to the objectives of environmental review defined by Minnesota Rules 4410.030.

The remaining details of permitting as well as details regarding monitoring and mitigation, are beyond the scope of an EIS and are necessarily reserved for the permitting process which is within the MDNR’s ongoing permitting authority. In my experience, the MDNR is extremely diligent in its statutory responsibility to protect groundwater and natural resources through the permitting process. I have no doubt that the permit, when issued, will be protective of future water users and natural resources.

Based on the foregoing, I respectfully recommend that the MPCA close the record on this EAW and make a negative declaration on the need for an EIS per Minnesota Rules 4410.1700, so that the required permitting can move forward.

Please contact me if you have any questions at [email protected] or 701.595.4155.

Sincerely,

James S. Aiken, MSc Licensed Professional Geologist PG #30282 Vice President, Senior Hydrogeologist Barr Engineering Co.

Enclosures: Table 1

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Attachment A – Qualifications and Experience Attachment B – MNDR Final Aquifer Test Report; Executive Summary, Recommendations, etc.

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Location in Report Rule Requirement Already Applicable to EIS? Information Already Presented Rule Requirement (Proxy EIS Scope) or EAW Addressed? Effects of Proposed Groundwater EAW, Preliminary, and/or Final Aquifer Test Reports Report and Page # (Y/N) Appropriations Water Appropriations Permit Application (MN Statutes 103I.204) (1) a water well record as required by section 103I.205, subdivision 9, information on the Yes, this describes the aquifer resource Yes - includes field data and conservative estimates where parameters and aquifer boundaries subsurface geologic formation s penetrated by the well and the formation or aquifer that are estimated. EAW, Attach 11 YES will serve as the water sourc e, and geologic information from test holes drilled to locate the site of the production well; (2) the maximum daily, seasonal, and annual pumpage rates and volumes being Yes this describes the magnitude of potential Yes - included in DNR Reports and EAW EAW, pg 27; Attach 15; Final requested; effects Aquifer Test Report (FATR)-p11 YES (Attachment B, p16 item 1) (3) information on groundwater quality in terms of the measures of quality commonly Yes. This describes potential conditions related Yes - the DNR collected baseline water levels and water quality samples; the EAW explains specified for the proposed water use and details on water treatment necessary for the to use, discharge, or treatment related to the potential risks and mitigative practices related to manure spreading. EAW, pg. 27-28 YES proposed use; project (4) the results of an aquifer test completed according to specifications approved by the Yes. Describes the properties of the aquifer Yes - the test was conducted in accordance with DNR guidance and for 21 days combined with commissioner. The test must be conducted at the maximum pumping rate requested in resource and the potential changes due to 21 day recovery period which longer than the typical 3 day test. DNR concluded that recovery EAW, Attachment 15; FATR - pg YES the application and for a length of time adequate to assess or predict impacts to other project was slow, however this appears to be subjective and not supported by data. 3-7 wells and surface water and groundwater resources. (5) the results of any assessment s conducted by the commissioner under paragraph (c). Yes - preliminary test results, rare species, Yes- included in EAW EAW, Attach 7 and 8 and 15; YES wetlands etc. FATR (Attachment B) (b) The commissioner may waive an application requirement in this subdivision if the information provided with the application is adequate to determine whether the proposed No - This provision relates to permitting No - Not Applicable; It is assumed that no provisions will be waived. Not Applicable No - Not Applicable in Context of EIS appropriation and use of water is sustainable and will protect ecosystems, water quality, and the ability of future generations to meet their own needs. (c) The commissioner shall provide an assessment of a proposed well needing a Yes - included. In this case DNR approved he Yes - included detailed evaluation and analysis; approval of test well does not constitute a groundwater appropriation permit. The commissioner shall evaluate the information production well as a test well and performed permitted appropriation submitted as required under section 103I.205, subdivision 1, paragraph (e), and determine both the bulk of the testing as well as the whether the anticipated appropriation request is likely to meet the applicable assessment which included modeling requirements of this chapter. If the appropriation request is likely to meet applicable predictions, cumulative effects, monitoring and EAW, Attach 14, 15 YES requirements, the commissioner shall provide the person submitting the information with mitigation concepts a letter or electronically transmitted notice providing preliminary approval to construct the well and the requirements, including test-well information, that will be needed to obtain the permit. (d) The commissioner must provide an applicant denied a groundwater use permit or issued a groundwater use permit that is reduced or restricted from the original request No - This provision is procedural related to with all information the commissioner used in making the determination, including No - Not Applicable in Context of EIS because no denial was issued. Not Applicable No - Not Applicable in Context of EIS permitting hydrographs, flow tests, aquifer tests, topographic maps, field reports, photographs, and proof of equipment calibration. Well Interference (MN Rules 6115.0730) A. The applicant shall be responsible for obtaining and providing to the commissioner, Yes -as above; this also describes the resource, available information including depth, diameter, nonpumping and pumping levels, quality, and the other users in the area and well construction details for all domestic and public water supply wells located within Yes - included EAW, Attach 5 YES the area of influence of the proposed appropriation well.

B. The commissioner may require aquifer tests or other field tests to be conducted. Yes- as above; this describes the properties of Yes - included the aquifer resource and the potential changes EAW, Attch 11 YES over time C. The commissioner shall determine the probable interference with the domestic and Yes - this information allows assessment of Yes- included public water supply wells based on theoretic computations using available information potential effects regarding the aquifer characteristics obtained from aquifer tests and/or from hydrologic FATR, pg 7-13 (Attachment B, p studies, and the probable effects of lowering the water levels in the domestic and public YES 16 5a and 5b) water supply wells due to the proposed appropriation in the area. For public supply wells only the probable interference with that portion which is used for domestic water supply is considered. D. The commissioner shall provide the prospective appropriator with an evaluation of the Yes - needed to assess potential cumulative Yes - included in report-forward model simulations EAW, Attachment 15; FATR, pg 7- nature and degree of effect of the appropriation on the water levels of the domestic effects 10 and p16 (Attachment B, p16 YES well(s) and public water supply well(s). item 4c and 4d) E. The commissioner shall not issue the permit until the applicant agrees to exercise any of the following options within 30 days after written notification by the commissioner: See items 1) and 2) below

1.) accept a modification or restriction of the permit application to provide for an Yes - identify potential mitigation that would Yes- Proposer has already accepted some DNR restrictions, remaining issues to be addressed YES (Ongoing) adequate domestic water supply; or prevent the presumed effects during permitting process EAW, Attach 15 (pg1) 2.) submit a written agreement signed by the applicant and all parties identified under Yes - may be discussed conceptually, but details Yes- well owner discussions have been initiated but regardless of outcome, the MDNR can assert item C as having probable interference. Such agreement shall outline the measures that are owner specific and the details must meet authority to mandate mitigation through settlement procedure included in rule will be taken to ensure maintenance of water supplies to such identified parties to the MDNR requirements, otherwise the MDNR can Included by Rule 6115.0730 Sub YES (Ongoing) extent that would have existed absent the proposed appropriation. In cases where no implement settlement procedures to implement 4 agreement can be reached, the commissioner shall implement the settlement procedure mitigation. identified in item D. Additional information provided that is not required by rule Estimate of 50% and 25% Aquifer Threshold Drawdown Yes - could be an EIS topic but is not required by Yes- MNDR has developed thresholds to manage water resources through experience and FATR, pg 12-13 (Attachment B YES rule. regulatory authority. This is a policy related to the concept of "safe yield" p.16-17 items 4 and 5) Impacts to Groundwater Dependent Features (e.g. fens) Yes - calcareous fens are protected features Yes - MDNR found no response to pumping in wells near calcareous fens; not connected FATR, pg 14 (Attachment B p 16, YES 1st bullet at top of page) Monitoring Recommendations No - generally dependent on monitoring data Yes - MDNR included recommendations for monitoring to trigger actions to prevent (mitigate) that is not available during environmental exceeding drawdown thresholds above EAW, Attach 15 pg 1; FATR YES review; details developed during permit (Attachment B. p16 4c, 5a, 5b) negotiations

Attachment A

Qualifications and Experience

JAMES S. AIKEN, PG, RG Vice President, Senior Hydrogeologist

Experience Jim Aiken has more than 30 years of experience solving complex permitting and site development issues related to environmental review, water supplies, soil, and groundwater contamination, as well as assessing impacts of development on natural resources. He is Vice President and a Senior Hydrogeologist at Barr Engineering Company, one of the largest groundwater consulting engineering firms in the Midwest for over five decades. Barr is based in Minneapolis with 10 offices in the US and Canada and over 850 scientists and engineers. Barr is routinely engaged in large complex projects involving groundwater and surface water resources in Minnesota. Jim’s technical training and expertise in the hydrogeology and understanding of glacial deposits combined with experience in groundwater modeling, pumping tests, and monitoring networks allows him to help solve his client’s most complex hydrologic problems. He is uniquely qualified to address potential impacts from groundwater appropriations and well interference from his work on numerous mine projects in the Minnesota River Valley where large-scale groundwater extraction for mining has the potential to affect nearby private well users. Jim has worked closely with Minnesota Department of Natural Resources staff to balance the needs of the client with the MDNR’s statutory responsibility to manage and mitigate water use issues. In addition, Jim has worked on environmental review projects in Minnesota for nearly 20 years including projects as an MPCA contractor for an Environmental Assessment Worksheet (EAW) and Environmental Impact Statement (EIS). Environmental Review Jim’s project work in this area includes: . Prepared expert analysis and opinion letter supporting a negative declaration on an EIS for Barrick Family Farms in Norman County, MN. The analysis included evaluation of local geology, development of a hydrogeologic conceptual model, and evaluated the potential for the facility to effect aquifer and natural resources in the project area. . Serving as principal in charge for the Great Plains Sand frac-sand mining project near Shakopee, Minnesota. Assisted client with groundwater modeling assessment for an EAW that demonstrated lack of impacts to surrounding private wells and wetlands . Acted as Principal-in-Charge for a detailed groundwater investigation of potential well interference issues for Merriam Junction Sands, proposed sand and aggregate mine operation in Scott County, MN. The scope of the investigation included test drilling, well installation, water quality sampling, isotope testing, groundwater modeling and long-term groundwater monitoring. A significant part of the project included evaluation of over 100 nearby private wells to assess the potential for well interference from the proposed project. Jim established criteria for identifying which wells and the terms for those wells that would need private developer agreements that define thresholds and actions by the proposer to deepen or replace private wells to mitigate potential impacts from the project.

Barr Engineering Company JIM AIKEN continued

. Serving as principal in charge for a frac-sand mining project near Mankato, Minnesota. Provided testimony at public hearings, explained operations and groundwater monitoring provisions to regulators, and assisted client with groundwater modeling assessment that demonstrated lack of impacts to surrounding landowner wells and wetlands. . Also, for the Mankato project, Jim led an investigation team that collected data from geologic borings, pumping tests, and monitoring wells to construct a 3-D groundwater model. The model was then used to assess potential dewatering impacts to nearby private wells and a calcareous fen as part of water appropriations permit application. . Conducted detailed investigation of a calcareous fen near the Mankato mine including well installation, water quality sampling, isotope testing, groundwater modeling and long-term groundwater monitoring. Also assessed impacts of episodic flooding of the fen and compared the events to variations in groundwater flow during flooding periods to assess likelihood that a historical increase in flooding episodes was causing changes to rare species and other plants within the fen. . Team leader for mining client in negotiating amendments to a water appropriation permit and additional testing requirements to assess potential impacts to the Lime 30 calcareous fen complex near Mankato, MN. Facilitated meetings between the client, Barr’s groundwater and wetland staff and the Minnesota Department of Natural Resources. . Working with Scott County’s consultant for Merriam Junction Sands, Jim helped develop a novel method of assessing impacts to surface water including a shrub-Carr type seepage wetland. The method used the models to derive groundwater and surface water volumes moving into the wetlands and then subtracted the projected groundwater loss from dewatering. The modeling showed that the anticipated water loss was negligible in most cases but identified portions of wetlands and some private wells that would be likely to require mitigation over time if future monitoring data showed a decline in water level. . Developed monitoring plan for a rare seepage wetland at Merriam Junction Sands that is adjacent to a limestone aggregate mine near Shakopee on the Minnesota River. The goal of the plan was to provide early warning in the even that dewatering activities may result in diversion of groundwater from the wetland. . Serving as project manager for Shakopee Sands, an EAW requiring groundwater investigation and modeling at a proposed frac-sand mine site near Jordan, Minnesota. The site was the first new (greenfield) frac sand mine permitted in Minnesota in more than 30 years. Data from borings, pumping tests, and monitoring wells were used to construct a 3D groundwater model. The model was then used to develop a groundwater monitoring network, contingency plans, and assess potential dewatering impacts to nearby private wells and wetlands adjacent to Sand Creek and the Louisville Swamp. . Developed a novel monitoring plan to assess climatic and water level trends at the Great Plains Sands project by using a network of regional monitoring data including

Barr Engineering Company JIM AIKEN continued

long term monitoring of Seminary Fen as a control site for groundwater changes affecting the lower Minnesota River Valley. . Serving as principal-in-charge for an Environmental Impact Statement (EIS) for a 400- acre frac-sand mining near Kasota, Minnesota, that involved multiple environmental studies and groundwater flow modeling to assess potential cumulative dewatering impacts from nearby mining operations on the Kasota 7 calcareous fen. . Evaluated proposed mitigation activities, monitoring data, and water injection pilot study conducted by Unimin on the Kasota 7 calcareous fen. . Led investigation including drilling borings, installing wells, conducting pumping tests and building a 3-D regional groundwater used as part of an environmental impact statement (EIS) prepared by the University of Minnesota to assess and predict changes in mining end-use plans and related potential for significant effects on surface water, irrigation wells, wetlands, and trout populations in the Vermillion River. . As part of UMore Project, Jim assisted Dakota Aggregates with permitting a 400 acre mine as the first ever Large-Scale Aggregate Extraction operation in Rosemount, MN. The mine operation included dredging below the water table. Support tasks including attending public meetings, describing the details of groundwater flow, and addressing public concerns regarding mining below the water table. . Assisting a VONCO, a landfill operator in Minnesota in reversing a county board’s positive declaration for an EIS for a proposed landfill expansion. The declaration would have required the operator to conduct a full EIS even though record documents indicated that there were no significant impacts. Jim provided an opinion evaluating each of the identified concerns and applied state Environmental Quality Board rules 4410.1700 to assess whether an EIS was warranted based on the data available. . Conducting comprehensive siting evaluation, test drilling, well installation, aquifer testing, groundwater evaluation, drilling, and monitoring program for a scoping EAW and EIS for a proposed solid-waste facility in Washington County, Minnesota. . Providing detailed research and authoring portions of Environmental Assessment Worksheet (EAW) and EIS documents as an MPCA contractor on Elk River Landfill which is located adjacent to a large wetland complex. . Preparing scoping EAW and EIS resource documents for a landfill expansion in Burnsville, Minnesota that included assessment of the expansion on nearby water wells and wetlands. . Providing a preliminary groundwater/surface-exposure assessment for a proposed commercial hunting preserve in central Minnesota as part of a proposed EAW. . Conducted floodplain modeling and reviewed wetland delineation reports for a proposed EAW for a subaqueous gravel mine operation in a floodplain of the Rock River in Luverne, MN.

Barr Engineering Company JIM AIKEN continued

Environmental Investigation and Remediation Jim’s project work in this area includes: . Developing groundwater monitoring networks and compiling existing and new investigation data into new geologic conceptual models for 10 permitted solid-waste facilities in Montana, North Dakota, and South Dakota. The scope of work for these projects included testing, drilling, well installation, aquifer testing, and optimization of the well networks for representative statistical analysis of groundwater data in glacial and bedrock aquifers. . Conducted resource assessments including gravel estimates, wetlands, and water resources for pipeline easement condemnation proceedings in Northwestern Minnesota. Included evaluation of moraines and former Lake Agassiz shoreline gravel deposits. . Developing and preparing research documents on the fate and transport of polyacrylamide and other flocculants in surface water and groundwater at multiple frac sand mine sites . Conducting high-resolution field mapping of a coarse glacial fluvial aquifer with ground-penetrating radar to identify preferential pathways for contaminant migration. . Constructing a full three-dimensional, finite-difference flow model (MODFLOW) of an outwash aquifer near Stoughton, Wisconsin. The model was linked with a particle- tracking code (PATH3D) to identify sedimentary facies associated with preferential contaminant movement. . Modeling transient changes in hydraulic head at a tailings pond near Hibbing, Minnesota, using MODFLOW. The purpose of the simulation was to predict settlement of fine-grained tailing particles to increase pond capacity. . Conducting a ground-penetrating-radar survey that identified a source area for chlorinated solvent contamination at a site in Mound, Minnesota. The investigation and subsequent remediation included construction of a wetland to treat groundwater discharging through the wetland into Lake Minnetonka. Surface-Water/Groundwater Hydrology Jim’s project work in this area includes: . Managing a field investigation and groundwater model development to simulate dewatering approaches for a frac sand mine in Grantsburg, Wisconsin. The model helped to evaluate different dewatering system configurations in order to minimize surface water discharges of suspended sediments and impacts to surrounding wetlands. . Assessed wetland sediments in a former sewage treatment pond near Long Lake to determine the proper handling of sewage sludge for a proposed road project by MNDOT. . Evaluating pond sediments for nutrients, metals, and potential reuse of dredge spoils for a lake in the Minnesota River floodplain.

Barr Engineering Company JIM AIKEN continued

. Providing expert testimony on environmental due diligence and remote-sensing data interpretation for determining past waste disposal activities adjacent to a permitted solid-waste facility. . Provided testimony to a legislative committee evaluating legislation to restrict quartzite mining in southwestern Minnesota over concerns regarding impacts to wells and private water supply wells. . Provided testimony on behalf of Olmstead County for a condemnation case involving an open water mining operation near the Zumbro River. . Performing hydrogeologic evaluation and managing a field investigation of a landfill and former sewage lagoons in Rochester, Minnesota. The project included soft sediment sampling intended to distinguish sewage sludge from wetland deposits. . Led team investigation of sediments and flux of groundwater seepage from Black Dog Lake in Burnsville, Minnesota that led to improvements in a groundwater flow model of the area. The model was able to quantify river interactions with groundwater and local pumping effects including effects on Black Dog Preserve Fen. Land-Use Planning . Managing investigation and environmental review of a proposed development on land previously used as a World War II munitions plant. Investigation related to the potential for contamination resulting from past land uses. . Completing an aggregate-resource investigation to estimate mine-worthy quantities of sand and gravel for a site near Jordan, Minnesota. . Performing an aggregate-resource investigation and mine-development plan for a property in Sibley County, Minnesota. Water-Supply Studies Jim’s project work in this area includes: . Developing water-supply alternatives for a proposed 500-MW combined-cycle power plant in southwestern Iowa. . Performing a water-supply and geochemical evaluation for a 750-MW plant and coal- ash-disposal facility near Muscatine, Iowa, that included well installation, groundwater modeling, and a comprehensive well identification, mapping, and well-abandonment program. . Completing preliminary site selection and water-supply evaluation for a combined- cycle power plant near Appleton, Wisconsin. . Managed an investigation and modeling to addressed concerns about the impacts to future municipal water supplies from a mine pit lake near a former Superfund site.

Barr Engineering Company JIM AIKEN continued

Expert Testimony Jim’s project work in this area includes: . Managing a team that authored an extensive review of existing data and expert opinions demonstrating that a proposed landfill expansion site did not require an EIS based on engineering and geologic information provided in previous EAWs. The analysis used established methodology and applied regulatory guidance to support conclusions. . Conducting extensive review of aerial photographic evidence to determine the timing and location of illegal dumping activities on a parcel later purchased by the client. The opinion identified a standard methodology for aerial photograph review and used the methodology to evaluate the photographs and conclude when and where the dumping activity occurred. . Reviewing due diligence reports and soil and groundwater investigation data to assess whether a data collection was conducted in accordance with ASTM and industry standards and in a manner that would have identified certain subsurface materials found in a subsequent excavation. . Evaluating aerial photographic evidence to demonstrate the history of land use along a disputed easement in Northern Wisconsin. . Providing expert review of Phase I due diligence and Phase II investigative procedures for criminal prosecution of a former tenant on a client property. Identified provisions in rules that allowed for recovery of legal fees for illegal deposition of hazardous wastes.

Education MS, Geology University of Wisconsin–Madison, 1993 (emphasis: glacial geology and hydrogeology) Conducted thesis investigation that included field testing, geologic mapping of moraines, and groundwater modeling of glacial deposits. Research included field work in Wisconsin and near active glaciers in Alaska. BS, Geology, University of Wisconsin–Madison, 1986

Registration/ Membership Professional Geologist: Minnesota, Wisconsin, and Missouri SME Registered Member for Mine Resource Evaluations Member Minnesota Groundwater Association Member National Groundwater Association Geologic Society of America

Barr Engineering Company

Attachment B

MNDR Final Aquifer Test Report

(Executive Summary, Recommendations, and References)

Ecological and Water Resources - Groundwater Technical Analysis Aquifer Test Report Date: 9/24/2020 To: Josh Prososki, Area Groundwater Appropriation Hydrologist From: Jennifer L. Rose, PG, Groundwater Specialist Subject: Aquifer Test Report for Permit Application 2019-3273 Waukon Dairy, Norman County Reviewed by: John Seaberg, PG, Groundwater Specialist PROFESSIONAL GEOLOGIST I hereby certify that this plan, specification, or report was prepared by me or under my direct supervision and that I am a duly Licensed Professional Geologist under the Laws of the State of Minnesota. License No: 56562 Date: 9/24/2020

Executive Summary

Riverview LLP submitted an application to the Minnesota Department of Natural Resources (DNR) for appropriating 120 million gallons per year of groundwater for a proposed dairy facility in Waukon Township in Norman County. To date, two of the three production wells have been installed. A 21-day constant rate aquifer test was conducted to DNR’s specifications. The Production wells source water from an unconsolidated, leaky confined aquifer deposited in a glacial setting. Based on aquifer test results, the source aquifer is productive but slow to recharge, the pumping radius of influence is at least two miles, and there is a strong hydraulic connection between the source and shallow buried aquifers. These results present concern for long-term aquifer sustainability and water supply issues for nearby groundwater users in both the source and shallower buried aquifers. Therefore, technical recommendations include the following: • Verify the Waukon Dairy requested pumping rate and volume. • Request groundwater technical review after the third production well is installed. • Obtain missing domestic well information and re-evaluate risk for water supply problems upon receipt of new information. • Monitor groundwater levels and set safe yield aquifer thresholds. • Consult with Skaurud Grain Farms regarding the potential for water use conflict and the future use of Irrigation well 2013-0948 and 2019-0049. • Request additional data and groundwater technical review to determine if safe yield thresholds are protected from the effects of cumulative use.

Aquifer Test Report, Permit Application 2019-3273, Waukon Dairy Page 1 of 59

Pumping the Production wells is not expected to reduce water levels or cause stream depletion in nearby surface water features or groundwater dependent calcareous fen wetland complexes.

Recommendations

Technical recommendations include: 1) Verify the Waukon Dairy requested pumping rate and volume. The current permit application maximum pumping rate is 260 gpm and volume of 120 million gallons per year. This volume equates to pumping at approximately 230 gpm for 24 hours per day per year, which was used to assess pumping impacts in this report. Pumping at 260 gpm corresponds to a volume of 136.7 million gallons per year. If Riverview LLP intends to pump more consistently at 260 gpm then Groundwater Technical recommends drawdown predictions be re-calculated to assess pumping impacts at the higher rate and volume. 2) Request groundwater technical review after the third production well is installed. A specific capacity test is recommended following the installation of the third production well. The specific capacity test is recommended to include monitoring of water levels in the on-site observation wells. Following technical review, additional aquifer testing may be recommended depending on the location and depth of the third well. 3) Obtain missing domestic well information and re-evaluate risk for water supply problems upon receipt of new information. If any wells are determined to be at high risk from pumping the Waukon Production wells then mitigation measures will be recommended. Groundwater Technical recommends a licensed well driller be contracted if any physical work on the wells is conducted. 4) Monitor groundwater levels and set safe yield aquifer thresholds. The following groundwater level monitoring condition language is recommended: a. Groundwater levels shall be monitored in the on-site source and shallow observation wells (unique well numbers 846320 and 847876). A transducer data logger shall be set to read depth to water (feet below the measuring point) at least once every hour year round. Manual groundwater level measurements shall be taken once per month in the observation wells. Data loggers should be downloaded concurrently with manual measurements. b. Permit holder monitoring data shall be reported in electronic format to the DNR Groundwater Level Coordinator via email ([email protected]) on an annual basis or upon request. An electronic spreadsheet form titled Groundwater Level Monitoring Spreadsheet is available through DNR Water Appropriations Permit Program website. Setting safe yield thresholds is recommended for each observation well. The following thresholds are recommended: c. If groundwater levels in observation well 846320 reach the 50 percent threshold (100.9 feet below the measuring point or 1036 feet NAVD 88), the appropriator should identify and prepare to implement an alternate groundwater source or reduce the appropriation rate Aquifer Test Report, Permit Application 2019-3273, Waukon Dairy Page 16 of 59

and volume. If groundwater levels reach the 25 percent threshold (140 feet below measuring point or 997 feet NAVD 88), the appropriator is to cease groundwater use. The threshold levels are based upon the pre-aquifer test static water level of 22.8 feet below the measuring point or 1114.2 feet NAVD 88 and top of aquifer of 178 feet below land surface from the well log (179.1 feet below the measuring point or 957.5 feet NAVD88). d. If groundwater levels in observation well 847876 reach the 50 percent threshold (52.9 feet below measuring point or 1086 feet NAVD 88), the appropriator should identify and prepare to implement an alternate groundwater source or reduce the appropriation rate and volume. If groundwater levels reach the 25 percent (67.1 feet below the measuring point or 1071.8 feet NAVD 88), the appropriator is to cease groundwater use. The threshold levels are based upon the pre-aquifer test static water level of 24.5 feet below the measuring point or 1114.4 feet NAVD 88 and top of aquifer of 80 feet below land surface from the well log (81.3 feet below the measuring point or 1057.5 feet NAVD88). 5) Consult with Skaurud Grain Farms regarding the potential for water use conflict and the future use of Irrigation well 2013-0948 and Irrigation well 2019-0049. a. Pumping the Waukon Production wells may result in a water use conflict with Irrigation well 2013-0948 (unique well number 796214). However, Skaurud Grain Farms removed the pump and did not use this irrigation well during the 2020 growing season. b. Appropriation from Irrigation well 2019-0049 (unique number 842464) and the Waukon Production wells together is expected to cause exceedance of safe yield thresholds in the shallow and source aquifers. However, no water use has been reported from Irrigation well 2019-0049 to date. 6) Request additional data and groundwater technical review to determine if safe yield thresholds are protected from the effects of cumulative use. Pumping from nearby permitted irrigation wells will likely lower water levels in the Waukon wells. This cumulative use could cause safe yield thresholds to be approached or exceeded more quickly. It is recommended that the following items be submitted for this evaluation: a. Groundwater level data collected in the Waukon on-site observation wells (846320 and 847876) during the 2020 growing season. b. Obtain the water use records from nearby irrigation wells (2019-0049, 2015-0822, 2013- 1107, and 2013-0948).

Aquifer Test Report, Permit Application 2019-3273, Waukon Dairy Page 17 of 59

References

Berg, S.J., Hseih, P.A., Illman, W.A., 2011, Estimating hydraulic parameters when poroelastic effects are significant: Ground Water, vol. 46, no. 6, p. 815-829. Duffield, G. M., 2007, AQTESOLV for Windows Version 4.5 User's Guide: Reston, VA, HydroSOLVE, Inc. Fetter, C.W., 2001, Applied hydrogeology, (4th ed.): Prentice-Hall, New Jersey. Hsieh, P.A., 1996, Deformation- induced changes in hydraulic head during ground-water withdrawal: Ground Water, vol. 34, no. 6, p. 1082-1089. Minnesota DNR, 2020, Retrieve climate data from National Weather Service reporting stations: Minnesota Department of Natural Resources. Available at: NWS reporting stations. MNDNR Permitting and Reporting System (MPARS) Number 2019-3273 includes all the information reviewed for this document and is available at: MPARS login. MGS and MDH, 2020, County Well Index: Database created and maintained by the Minnesota Geological Survey (MGS) a department of the University of Minnesota; with the assistance of the Minnesota Department of Health (MDH). Accessible through the MDH Minnesota Well Index mapping application at: Minnesota County Well Index. Neuman, S.P. and Witherspoon, P.A., 1969, Theory of flow in a confined two aquifer system: Water Resources Research, vol. 5, no. 4, pp. 803-816. Neuman, S.P. and Witherspoon, P.A., 1972, Field determination of the hydraulic properties of leaky multiple aquifer systems: Water Resources Research, vol. 8, no. 5, pp. 1284-1298. Renard, P., 2005, Chapter 151: Hydraulics of wells and well testing: Encyclopedia of Hydrological Science, John Wiley & Sons, Ltd. Rose, J.L., 2020a, Groundwater technical review 2019-3273 Waukon Dairy, Norman County: Minnesota Department of Natural Resources Ecological and Water Resources. Available at MPARS, www.dnr.state.mn.us/mpars. Rose, J.L., 2020b, 2019-3273 Waukon Dairy site preparation- Step 1- aquifer test specification: Minnesota Department of Natural Resources Ecological and Water Resources. Available at MPARS, www.dnr.state.mn.us/mpars. Rose, J.L., 2020c, 2019-3273 Waukon Dairy- running the aquifer test- Step 2- aquifer test specification: Minnesota Department of Natural Resources Ecological and Water Resources. Available at MPARS, www.dnr.state.mn.us/mpars. Rose, J.L., 2020d, 2019-3273 Waukon Dairy, Preliminary aquifer test findings, Norman County: Minnesota Department of Natural Resources Ecological and Water Resources. Available at MPARS, www.dnr.state.mn.us/mpars. Todd, D.K., 1980, Groundwater Hydrology, 2nd ed: John Wiley & Sons, New York, 535p.

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-----Original Message----- From: [email protected] On Behalf Of [email protected] Sent: Friday, October 16, 2020 9:33 AM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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Dear Mr. Peterson:

My name is Sarah. I live in Brownsville, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Sarah Sander 3956 County 3 Brownsville, MN 55919-5885 87

-----Original Message----- From: [email protected] On Behalf Of [email protected] Sent: Friday, October 16, 2020 3:03 PM To: Peterson, Charles V (MPCA) Subject: EIS for Riverview Dairy NOW!

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Dear Mr. Peterson:

My name is Laura. I am a farmer that lives and farms in Hutchinson, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

As a young farmer in Western MN, I see that there are many farmers, young and old, that want to start farming and want to continue farming. However, these huge dairy operations are taking over market control and seizing all opportunities to compete. This market consolidation is terrible for our land and affecting the vitality of our rural communities. We must prioritize the good of many farmers over the growth of one farmer's business.

Mr. Peterson, please take my personal story as a farmer and rural MN resident to ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Laura Frerichs 23229 200th St. Hutchinson, MN 55350-4227 88

-----Original Message----- From: [email protected] On Behalf Of [email protected] Sent: Friday, October 16, 2020 3:40 PM To: Peterson, Charles V (MPCA) Subject: Riverview's New Waukon Dairy Needs an EIS

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______

Dear Mr. Peterson:

My name is Vincent Ready. I live in St Charles, MN and I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion.

Mr. Peterson, please take this into account and ensure that this proposed Riverview expansion undergoes a full EIS. Protect small to mid-sized farmers and the land.

Hope you stay safe and healthy.

Sincerely,

Vincent Ready Vincent Ready 11048 Cox Dr St Charles, MN 55972 APPENDIX B

Minnesota Pollution Control Agency

Waukon Dairy Environmental Assessment Worksheet (EAW)

RESPONSES TO COMMENTS ON THE EAW

Procedural Comments

Comment 1: The Minnesota Center for Environmental Advocacy (MCEA) is writing to request an extension of the comment period for the Environmental Assessment Worksheet (EAW) and feedlot permit referenced above. (1)

Response: MPCA extended the comment period for 30 days from September 16, 2020, to October 16, 2020.

Comment 2: MCEA also notes that, based on public information, the Waukon Township Board may have prematurely approved the Conditional Use Permit for Riverview Dairy in December 2019. MCEA assumes that this action will be rescinded because it preceded the completion of the environmental review. (1)

Response: The Minnesota Pollution Control Agency (MPCA) does not have the authority to rescind or require a township board to rescind a Conditional Use Permit. Commenter needs to take this issue up with the Waukon Township Board.

Comment 3: Commenters state that the Project has the potential for significant environmental effects and request the MPCA to order an Environmental Impact Statement (EIS) for the Project. · I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview Expansion. (5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 32, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 81, 83, 84, 86, 87, 88) · An EIS isn’t just a good idea, it is the only way we can be sure that the area around the proposed expansion can support it without degrading the air, water, and livability for the life, including people, surrounding it. The costs of an enterprise for profit should not have to be borne by other people, especially loss of air and water quality. (10) · I am writing because I believe there is wisdom in reviewing any large expansion in any type of husbandry. Your wisdom in this type of EIS review will go down favorably with local farmers and townspeople. (25) · Minnesota non-indigenous settlers were based in cooperatives – it shaped our state’s constitution. Did you know there are more co-ops in Minnesota than any other state? And farmers were in the lead in this ongoing project of working together. In the 162 years Minnesota has been a state, we have worked our way through many struggles, trying to balance business needs with individual and community needs. In the plea for fairness, please allow an Environmental Impact Statement on this proposed dairy expansion. (25) · Back in the 80s, (as is happening again now) over 350 dairy farmers went out of business in the Princeton (Mille Lacs County) area alone, due to the same issues that are pushing dairy

1 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

farmers our again now. If you travel around this area today you can still see the effects of all those people being forced out of business, and some of the lengths they turned to make up for lost income. And the communities around the area have suffered from it in many ways. A giant factory operation like Riverview, LLP (Riverview) is proposing will cause the same thing to happen to that area. But to allow it to move forward without even requiring and EIS is ludicrous. No entity large or small should be able to install operations that have the potential to affect so many other people and resources without an EIS. Please require an EIS before Riverview’s proposed expansion is allowed to move forward. (31) · These expansions cannot go on. They are destroying the land and small farmers. Please require an EIS in this precedent-setting case. (35) · You also need to perform this review because expansion of large dairy farms has a huge environmental impact and you are charged with fully understanding this impact before a project moves forward. (78) · With a Project of this scale, however, even with the incomplete information contained in the EAW, MPCA should recognize the potential for significant environmental effects and order and Environmental Impact Statement (EIS) to further examine those effects. (80)

Response: The Commissioner of the MPCA will make the determination on the need for an EIS after carefully reviewing all the information in the EAW, written public comments, and the Response to Comments. Upon reviewing all of the available information, the Commissioner determines if the Project has a potential for significant environmental effects following the criteria specified in Minn. R. 4410.1700 subp. 7. The Commissioner issues Findings of Fact, Conclusions of Law, and Order to support either a positive declaration on the need for an EIS, or a negative declaration on the need for an EIS.

Comment 4: I am surprised that such a large operation does not automatically need an EIS to be approved. Our karst topography leaves our ground water especially vulnerable to our agricultural practices. For the safety of all we must have rigorous EIS standards when a large dairy is proposed. The impact on small local dairies if this large operation is approved is tremendous. (41)

Response: The Minnesota Environmental Quality Board (EQB) oversees the environmental review program for the state of Minnesota. The EQB’s environmental review duties are directed by Minn. Stat. 116D.04. These duties include promulgating Minnesota’s environmental review program rules, which can be found at Minn. R. 4410.

Minn. R. 4410.4400 requires mandatory preparation of an EIS for specified types of projects that the EQB has determined to have significant environmental effects. Whereas, Minn. R. 4410.4300 specifies mandatory EAW categories, the EQB has determined to have the potential for significant environmental effects. The EQB rules require a mandatory EAW for greater than 1000 animal units (AUs), but the rules do not have a mandatory EIS category for Animal Feedlots.

The purpose of an EAW is an information gathering process for decision makers to aid in the determination of whether the proposed project has the potential for significant adverse environmental effects, requiring the preparation of an EIS. Based on the information provided in the EAW, the Responsible Governmental Unit (RGU) makes the decision whether an EIS should be required. The mandatory requirement for the EIS process is for proposed projects, which are known to have significant adverse environmental effects.

2 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

Further, the mandatory category for feedlots was initially proposed in 1982 because of the potential for significant environmental impacts relating to ground and surface water quality, odors, and local land use issues. This type of activity is likely to be controversial if the location is in a sensitive area or near residential or recreational developments. The mandatory EAW thresholds were amended in 1988 for feedlots, which totally confine the animals, and were set at twice the previous threshold. The recommendation was based on technical experience with numerous feedlot applications over previous years. Neither of these rulemaking processes identified the need for a mandatory EIS process for feedlots.

Comment 5: Commenters request that the following issues be addressed in an EIS. · It’s likely that our next pandemic will come out of a factory farm where the animals are unnaturally packed together. This risk needs to be included in the EIS. (16) · We strongly urge the MPCA to require an Environmental Impact Statement (EIS) for Waukon Dairy to measure fully its environmental impacts and outline alternatives, (39) · I am writing to you because I believe a full EIS must be performed on the proposed Waukon Dairy Riverview expansion, with special consideration taken on how many small farms will be forced out of business by this expansion. (31) · The loss of our small and mid-sized dairy farmers is of great concern. I’ve seen first-hand the impact on families and small communities that lose the hard-working farm families that are forced out of business by the mega-dairies. I also know the environmental consequences of nutrient pollution, and antibiotics in the environment and the potential for water and land degradation from large confined animal operations. An EIS is the bare minimum that is needed to fully evaluate numerous potential local impacts of the Waukon Dairy expansion before such an operation is permitted. (44) · This review is necessary because the Riverview expansion would have a huge impact on small and mid-sized dairy farms, who are struggling even more than ever now. (78) · The dairy industry as a whole is working towards being carbon neutral by 2050. We need to be moving on a direct path to do that. The importance of an EIS falls within the scope of this and I feel that it should be addressed as part of the EIS. I think it is important to do a Life Cycle Analysis of the operation from cropping and feed supply to manure management and milk hauling. Manure management is a big part of the carbon footprint; but it is also possible to move to carbon neutral. (84) · We feel more studies need to be done or find a better site – not so close to landowners in the area – no water – property value goes down. (4)

Response: If the MPCA determines that an EIS is required for this project, it will then follow the EIS scoping process as specified in Minn. R. 4410.2100. The EIS scoping process includes the opportunity for the public to comment on the scope of an EIS and participate in a Public Information Meeting on scoping. The rules do not provide for EIS scoping prior to the determination on the need for an EIS. (See also response to Comment 3)

Groundwater Quantity and Appropriation

Comment 6: MPCA received two comments from the Minnesota Department of Natural Resources (DNR) related to the long-term sustainability of the groundwater aquifer and the safe yield thresholds

3 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

for that aquifer. The first comment was received September 16, 2020, during the initial comment period. The second comment was received October 16, 2020, during the extended comment period. · DNR has received a permit application for appropriation from Waukon Dairy. An aquifer test was required as part of the permit process to determine aquifer sustainability at this site. Generally, DNR has concerns over the long-term sustainability of the aquifer. The DNR also has concerns for potential water use conflicts. The aquifer test has been conducted, however the analysis of data and conclusions have not been formalized. Without further information, we cannot comment to the full extent of impacts at this time. (3) · This comment letter is in addition to DNR comments sent to date including the September 16th letter and October 1, 2020, correspondence from Josh Prososki regarding the Riverview Waukon Dairy aquifer test results. Through those communications, the DNR expressed concerns including the cumulative sustainability of Riverview’s proposed and existing irrigation use.

Since our October 1, 2020, communication, the DNR has received data that shows that water use conflict would result from existing permitted use and Riverview’s proposed use. Minnesota Administrative Rule 6115.0740 defines water use conflict as occurring “where the available supply of waters of the state in a given area is limited to the extent that there are competing demands among existing and proposed users which exceed the reasonably available waters”. The DNR has identified safe yield thresholds for the source aquifer and the shallow buried aquifer at the Riverview Waukon Dairy site. The data we now have shows that existing and proposed use would exceed the aquifer’s safe yield. (82)

Response: DNR has identified that a water use conflict exists; however, Minn. R. 6115.0740 provides the DNR with a process and regulatory authority to ensure that an aquifer’s safe yield is not exceeded.

Minn. R. 6115.0740 also describes the process for resolving water use conflicts. The rule states that existing and proposed users must develop and submit a plan for proportionate distribution of the available water. The rule requires that DNR approve the plan. If the proposed and existing permittees cannot reach resolution regarding allocation of the available water, the DNR has the authority to develop a new plan, modify the proposed plan, and issue new permits and amend existing permits based on that plan. Options for resolving the conflict include, but are not limited to: modifying existing and proposed appropriations, restricting the timing of withdrawals, and seeking alternative water supplies. The process to resolve a conflict is collaborative, the outcome is uncertain and will take time. The DNR is now facilitating discussions among the existing and proposed users. (See also response to Comment 7)

Comment 7: MPCA must return the EAW to Riverview for supplementation or order an EIS so that the results of an aquifer test may be included, that the EAW is incomplete without the results of the aquifer test, which must be included in the EAW under Minnesota law, and that without the results of the aquifer test the MPCA cannot properly determine whether the Project has to potential for significant environmental effects. (80)

4 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

Response: Groundwater appropriations are addressed through the DNR Water Appropriations Permit program. Through its permit program, the DNR ensures water resources are managed so that adequate supply is provided to long‐range seasonal requirements. Further, Minn. Stat. § 116D.04, subd 16 requires an EAW to “include an assessment of the water resources available for appropriation.” The DNR issued a Preliminary Well Construction Assessment (PWCA) for the project to the MPCA. The MPCA considered and included this assessment of the water resources available for appropriation in the Waukon Dairy EAW as Attachment 14 and made it available for the public to review. In the PWCA, the DNR identified concerns of possible impact to nearby lakes, rivers, and wetlands, and to known groundwater users. The DNR also required Riverview to complete an aquifer test as part of the permit process to determine aquifer sustainability at the site. The DNR provided Riverview with Preliminary Aquifer Test Results which were included in the Waukon Dairy EAW as Attachment 15. The DNR Water Appropriation Permit will require the Riverview to address and mitigate any potential groundwater impacts to the nearby domestic wells. See also, Comment 6 from the DNR and Response to Comment 6.

MPCA can properly determine whether there is a potential for significant environmental effects for this project based on the PWCA, preliminary aquifer test results, and subsequent comments from the DNR. The MPCA also recognizes that any environmental effects determined to be significant as a result of the aquifer test will be addressed and mitigated through the DNR water appropriation permitting process. With respect to deciding whether a project has the potential for significant environmental effects, and determining the need for an EIS, MR 4410.1700, supb. 7 describes four factors that shall be considered by the RGU, one of which is: 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. Therefore, while potential significant environmental effects from this project have been identified in the PWCA and preliminary aquifer test results and subsequent comments from the DNR, the MPCA can determine at this time there are potential significant effects from the project, but they will be addressed and mitigated through the DNR Water Appropriation Permit process.

See response to Comment 5 for the process outlined in Minn. R. 6115.0740 detailing the process the DNR will employ during its permitting process to resolve the identified water use conflict. DNR’s Water Appropriation Permit, if issued, will be effective to mitigate any impacts identified in the aquifer test.

Comment 8: If the DNR does determine the lower pumping rate is still unsustainable, Riverview may have to make plans for obtaining additional water for the Project – perhaps by building a pipeline or importing water. The environmental effects of these contingency plans would not be included in any EAW or provided for public comment. Without accurate information about where Riverview will obtain the Project’s water, and the sustainability of those efforts, the EAW is incomplete. (80)

Response: The DNR has identified a water use conflict with the proposed project. Response to Comment 6 identifies the process the DNR will follow to resolve the conflict. If DNR determines that Riverview will need to find an alternative water source to supplement the on-site wells, MPCA will evaluate the proposal to provide the additional water to the Project and determine at that time if it is a substantial

5 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

change in the Project as described in Minn. R. 4410.1000 subp. 5. If MPCA determines that it is a substantial change, then a new EAW will be required at that time.

Comment 9: We (DNR) will continue to work with the applicant on water appropriation permitting within our authority under Minn. R. 6115. We recommend the applicant work closely with resource agencies to assess water appropriation impacts, implement a water conservation plan, and consider water-use innovations such as roof-top rainwater harvesting. (3)

Response: The MPCA notes the comment; no response to this comment is necessary.

Comment 10: The EAW fails to consider potential mitigation measures for conserving or reusing water. (80)

Response: It is environmental review standard practice to only describe in an EAW those mitigation measures a project proposer plans to implement and that the MPCA is reasonably confident will occur. The MPCA is unable to require specific mitigation actions through its environmental review process, because it is an information gathering process for decision makers. Minn. R. 4410.1200 states that the EAW shall address “resource protection measures that have been incorporated into the project design”.

Waukon Dairy will implement the following water conservation measures during the operation of the Dairy: · Well water is used for cooling milk and then reused as cattle drinking water. · Water used to clean the milking parlor is reused to clean the holding pen. · Water usage is measured with flowmeters to help manage water usage and to promptly identify and remedy any leaks. · Regular waterline and equipment inspection and maintenance to prevent leaks. · Water efficient pressure washers and hoses used in the barn.

Comment 11: As MPCA moves forward with the feedlot permitting process, please continue to coordinate closely with Groundwater Appropriation Hydrologist Josh Prososki. (3)

Response: The MPCA notes the comment; no response to this comment is necessary.

Comment 12: Commenters are concerned about the large appropriation of water by the Project and what will happen if their wells run dry. · Concerned about the water usage – 120 million gallons a year. We are about 2-3 miles west – have a 80’ well – good water – and sure would hate to find one day – no water. We are concerned – as am sure other landowners in the 5-10 mile area of proposed site. If no water – than what? (4) · Will this business pay for any wells that need to be drilled if the current wells get contaminated or run dry from this businesses practices? (58)

Response: Minn. Stat. 103G.265 requires the DNR to manage water resources to ensure an adequate supply to meet long-range seasonal requirements for domestic, agricultural, fish and wildlife, recreational, power, navigation, and quality control purposes. The Water Appropriation Permit program exists to balance competing management objectives that include both development and protection of Minnesota's water resources.

6 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

Minn. Stat. § 103G.261 establishes domestic water use as the highest priority of the State’s water when supplies are limited. If a well interference arises, the DNR has a standard procedure for investigating the matter. If the DNR finds a commercial operator is causing interference, the operator must correct it. See also response to Comments 6 and 7.

Comment 13: Commenters are concerned about the impacts of such a large dairy on the quality and quantity of water in the area. · “Farms” of this magnitude place a large burden of water, soil, and air pollution on the rural communities of our state. (6) · I am particularly concerned about pollution to our water systems, including groundwater. The number of animal units that this proposal represents will surely pose difficulty, and corporate entities are notorious for not taking responsibility for the harm they cause. (23) · Intense agriculture that is very hard on the soil structure and water resources in areas where they establish their huge operations. (57) · The huge amounts of water to be used by just one business, and the huge potential of manure, nitrogen, and other contaminants being over safe tolerances from this one business is too risky for Minnesotans. (58) · When we bought these 230 acres in 1993, and I was getting advice from Dr. Andy Overby, my good veterinarian, he reminded me that “the solution to pollution is dilution.” I agree, and having the proposed amount of cows with the anticipated amount of manure in one location is ludicrous. This a huge risk of an accident, and so much can be destroyed unintentionally. That area of Minnesota already has environmental pressure from other huge dairies. (58) · Water quality and quantity are huge factors regarding this project. The same issues were at play when my family ran a dairy operation in Waseca County. Experts have stated that our aquifers are under assault regarding regeneration. Coupled with manure waste this project is a serious problem in that soil type. (74)

Response: See responses to Comments 6 and 7 regarding quantity of water. See response to Comment 29 regarding impact water quality.

Comment 14: Additionally, Riverview should have to pay for the water they are using. They use millions of gallons of water free impacting the aquifer and the fragility of our fresh drinking water supply for corporate enterprise. (7)

Response: Comment is beyond the scope of the EAW because the information on this issue would not inform a reasoned decision about the potential for or significance of the environmental effects of the Project under Minn. R. 4410.1700.

Comment 15: Comment letter provided by Riverview, LLP to include in the record that discusses aquifer test results, water appropriation permitting process, mitigation measures, and ongoing regulatory authority related to groundwater appropriation. (85)

Response: Comment letter does not ask any specific questions that require response. Comment letter and attachment will be included as attachments to the Findings of Fact and become a part of the public record.

7 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

Greenhouse Gas and Air Emissions

Comment 16: Commenters are concerned about Minnesota putting off its climate change goals and that the EAW does not address how the Project will help to achieve these goals. · In the year 2020 we cannot keep pushing off making climate progress, and we can’t invite more degradation to our lands. (8) · I believe by allowing this, it is disregarding Minnesota’s climate goals – emitting more greenhouse gases, particularly methane and nitrous oxide, at a time when farmers are on the front lines of climate change. (69) · The commenter states that the MPCA should revise the EAW to contain information regarding: Minnesota’s plan to reduce GHG emissions in the Next Generation Energy Act, Minnesota’s progress in meeting the goals, agriculture’s role in meeting the goals, and the Project’s effect on Minnesota’s ability to meet the goals. (80)

Response: It is important to note that the Next Generation Energy Act targets are statewide reduction goals, not project‐specific mandatory thresholds/requirements, with progress measured across sectors and the economy as a whole. Although all contributions to climate change are not negligible, and all projects may have an incremental effect on Minnesota’s ability to meet the goals, to discuss the Next Generation Energy Act in relation to one specific project is currently outside the scope of MPCA Environmental Review.

The EQB is still working to determine how climate change will be incorporated into environmental review. Once EQB guidance is final, it may include information on whether and how to incorporate discussion of the Next Generation Energy Act into environmental review. (See also response to Comment 25)

Comment 17: Commenters assert that MPCA should look to guidance provided at the federal level from the Council on Environmental Quality (CEQ) on how to conduct an analysis of GHGs in Minnesota. · This guidance on considering GHG emission in environmental reviews has already been provided at the federal level through the CEQ. The CEQ’s guidance is for the National Environmental Policy Act (NEPA), but interpretations of NEPA’s requirements can be used to understand how to implement MEPA. The CEQ said, “A statement that emissions from a proposed Federal action represent only a small fraction of global emissions is essentially a statement about the nature of climate change impacts under NEPA.” This standard should be applied to the Waukon Dairy EAW as well: though Waukon Dairy will not significantly impact global GHG emissions, it will significantly hinder Minnesota’s ability to meet its goal of GHG reductions across all sectors. (39) · Commenter asked that the MPCA look to guidance on how to conduct a GHG and climate change analysis from EQB’s national equivalent [CEQ] and other guidance and tools when it considers how to conduct such an analysis in Minnesota. (80)

Response: The MPCA Environmental Review staff worked with the MPCA’s internal GHG specialists, who are familiar with the now‐withdrawn CEQ guidance, to develop an EAW-appropriate GHG analysis to include in the EAW. The MPCA considered a number of guidance documents, models, and methodologies, and made determination that the methodology used in the EAW was appropriate for an EAW‐level analysis of GHG emissions to make a determination on the significance of the environmental impacts by GHGs emitted by the Project.

8 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

Comment 18: In one evaluation of GHG emissions from the national supply chain of milk, 72% of the emissions occurred in processes prior to the milk leaving the farm. Without performing a life-cycle analysis of Waukon Dairy’s GHG emissions, the review will be incomplete and inherently flawed. (39)

Response: The MPCA acknowledged in the EAW the constraints on developing a full life-cycle analysis of GHG emissions for any project due to complexities of global climate, operational and site-specific factors, and local geography, among other items referenced. In addition, the EAW explains that the potential GHG emissions are estimates and do not consider all GHG emissions that the Project could possibly create, induce, or offset. The MPCA applied its technical expertise and experience with GHG emissions inventories and existing MPCA environmental review practices to determine which Project-related activities to quantify. The MPCA quantified the sources listed in the EAW because they are within the scope of the Project and these are the sources MPCA uses to estimate GHG emissions for the entire agricultural sector on a statewide basis, and the U.S. Environmental Protection Agency (EPA) provides emission factors for these sources.

Comment 19: Of the emissions that the MPCA did choose to quantify, the EAW’s estimate for nitrous oxide emissions from manure land application is likely far too low. In manure livestock-producing regions of the U.S., the amount of waste produced exceeds the capacity of the surrounding land to absorb it for plant production. Analyses of GHG emissions from livestock systems often assume waste application rates consistent with Natural Resources Conservation Service (NRCS) nutrient management criteria, yet farmers often exceed these guidelines. According to the EPA, heavy manure applications can result in substantial nitrous oxide emissions. As a result, GHG emissions from larger confinement operations are often underestimated. (39)

Response: The Commenter is assuming over-application of manure to croplands. Riverview submitted a Manure Management Plan (MMP) with its application for a Feedlot Permit. The MPCA has determined that the MMP is consistent with the land application rules in Minn. R. 7020.2225 and the Feedlot Permit. Riverview will not be allowed to over-apply manure. Riverview’s Feedlot Permit and associated MMP for the Project require that manure application occur at agronomic rates based on previous crop harvested, the available nutrients, and the crop to be grown. The MMP is an enforceable part of the Feedlot Permit. Therefore, “the analyses of GHG emissions from livestock systems often assume waste application rates consistent with Natural Resources Conservation Service (NRCS) nutrient management criteria” is valid for use in estimating GHG emissions from land application of manure.

Comment 20: The EAW states that Waukon Diary “does not own or operate any of the manure application sites” and will transfer manure to apply on approximately 12,952 acres. They have agreements with the owners of the other sites to accept manure from the project. But there’s no oversight of those acres and only vague wording in the EAW about when the manure would be applied. Without oversight, there’s no way to know whether manure is being over-applied, which would cause the project to be responsible for significant uncounted nitrous oxide emissions. (39)

Response: Riverview and any person receiving the manure from Riverview, will be responsible for complying with the MMP since it will be an enforceable part of the Feedlot Permit. The Riverview’s MMP included plans specifically for transferred manure, including providing the recipient of the manure information regarding the feedlot rule requirements. MPCA Feedlot Program staff are responsible for enforcing the requirements of the Feedlot Permit. If the MPCA becomes aware of any potential violations, they have the authority to take appropriate enforcement action. Therefore, it is reasonable

9 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

to assume that the estimates of nitrous oxide emissions from land application of manure in the EAW are accurate and valid.

Comment 21: Commenters assert that the EAW does not include all sources of GHG emissions from the project and is too narrow in scope, thereby underestimating the projects carbon footprint. · The EAW admits that “GHG emissions are not calculated for electricity generation that is required to operate lighting, heating, milk pumping equipment, etc. Also not included are GHG emissions from fuel combustion required to deliver feed, animals, and milk, and to operate farm equipment used in growing feed, processing feed, and applying manure.” Constructing barns, milking parlors and other infrastructure to accommodate 10,500 animal units will vastly increase Waukon Dairy’s electricity consumption, yet that’s left out of MPCA’s analysis. In addition, the EAW says that the project “expects an average of 269 vehicles per week” during operation. The emissions from this increased traffic must be accounted for. Emissions from these processes are a critical part of any life-cycle analysis, and omission of energy and fuel gives Waukon Dairy the appearance of having a much smaller GHG footprint than it really does. (39) · Other sources of emissions that the EAW does not count are the impact of using cropland to grow feed grains and the production of fertilizers and pesticides needed to grow those feed grains. According to the Food and Agriculture Organization of the United States (FAO), feed production and processing is the main source of emissions from livestock production. Leaving feed-associated emissions out of the analysis obscures that fact and paints an incomplete picture of Waukon Dairy’s climate impact. (39) · The commenter states that the EAW’s accounting of greenhouse gas emissions (GHG) does not estimate emissions from all sources. The MPCA’s estimates are too narrow in scope and underestimate the Project’s total emissions. (80)

Response: The MPCA acknowledged in the EAW the constraints in developing a full life‐cycle analysis of GHG emissions for any project and its effects on the environment due to complexities of global climate, operational and site‐specific factors, and local geography, among other items referenced. In addition, the EAW explains that the potential GHG emissions are estimates and do not consider all GHG emissions that the Project could possibly create, induce, or offset. The MPCA applied its technical experience with GHG emissions inventories and existing MPCA environmental review practices to determine which project‐related activities to quantify. The MPCA quantified the sources listed in the EAW because they are within the scope of the Project, and these are the sources MPCA uses to estimate GHG emissions for the entire agricultural sector on a statewide basis.

In January 2020, the Environmental Quality Board (EQB) created an Environmental Review Climate Technical Team to advise them on Environmental Review program changes, which include providing sufficient climate change information. The EQB is still working with the Environmental Review Climate Technical Team to determine how climate change is to be incorporated into environmental review, but this process will likely take several months to complete, and, therefore, could not be used to support the Waukon analysis. The MPCA’s GHG analysis methodology used for the Waukon Dairy EAW has been vetted by the agency’s GHG emissions experts and is consistent in methodology with the MPCA’s GHG emissions inventory. Once EQB guidance is final, MPCA Environmental Review will evaluate its approach for feedlot EAWs and incorporate any changes needed to ensure consistency of the approach and quality of analysis. MPCA Environmental Review may include additional GHG sources in future EAWs based on guidance from the EQB.

10 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

Comment 22: Commenters state that the EAW fails to include a full analysis of options to mitigate GHG emissions. · Emissions associated with feed production could be mitigated through different systems of livestock production, namely pasture-base livestock production, which we address in the mitigations section later in this comment. (39) · Despite the call to explore mitigations, the Waukon Dairy EAW contains no discussion of pasture-base dairy production, which is arguable the most effective mitigation of all. Management intensive grazing that is adapted to region, climate and the condition of the pasture or rangeland has multiple benefits. (39) · The commenter states that the EAW fails to analyze options for mitigating the GHG emissions from the Project. That the EAW must include a full analysis of mitigation measures as part of an environmental review and must analyze the feasibility and impacts of potential mitigation measures that could be implemented at the Project. (80)

Minn. R. 4410.1200 states that the EAW shall address, “resource protection measures that have been incorporated into the project design.” The EAW is based on readily available information and is not intended to be an exhaustive document or research paper. The robust analysis and discussion of mitigation measures the commenter is asking for is more suitable in an EIS than an EAW. However, the MPCA is required to determine the need for an EIS based on the criteria outlined in Minn. R. 4410.1700, subp. 7, which does not require the need for an EIS simply to do more analysis. The MPCA considers the GHG discussion provided in the EAW to be sufficient. If the Commissioner decides a better evaluation is required through an EIS, the MPCA would conduct that analysis at that time.

Waukon Dairy will implement the following GHG mitigations in the construction and operation of the Project: · Reduction of synthetic fertilizers by offsetting commercial fertilizer application with manure · Increasing perennial crops grown around the dairy, such as alfalfa · Variable speed pumps used on: o Wells o Milk pumps, vacuum pumps, and other milk process related motors o Manure separators and manure handling equipment · Use of a heat exchanger to cool milk before it enters tankers · Use of LED lighting · Ventilation fans are managed based on temperature and climate factors to reduce run time as much as possible, conserving energy.

Minnesota’s environmental review process does not currently require GHG mitigation as part of the EAW process. While these issues are beyond the scope and intent of the EAW process, they may be discussed in an EIS if the MPCA Commissioner determines there is a need for an EIS due to the potential for significant environmental effects from the Project.

11 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

Comment 23: The commenter provides examples of tools that could be used to estimate whole‐farm emissions resulting from the Project. · The EAW also says, “The information the MPCA would need to conduct a full GHG life-cycle analysis are not readily available.” MPCA can and must find tools to conduct a life-cycle analysis for Waukon Dairy and other proposed feedlots. An article in the Journal of Dairy Science lists many tools to estimate GHG emissions from dairy farms. These tools are described in the table below: [Table is in comment letter 39] (39) · MPCA can estimate the proper scope of GHG emissions by using existing tools. (80)

Response: The MPCA acknowledges the comment, further in the Matter of Daley Farms, Minnesota Court of Appeals, October 14, 2019 (A19‐0207 and A19‐0209), the court acknowledged that there is “no easy measure for determining the environmental impact from a feedlot permit because of the substantial difficulty and uncertainty in estimating emissions from animal feedlots”.

Part of the intention of EQB’s Environmental Review Climate Technical Team is to ensure government agencies, members of the public, and project proposers have access to sources of climate change‐ related data and information. The MPCA concurs that there are several models available for GHG quantification; however, the assumptions underlying each have several variables that need authentication before they can be used. The MPCA is relying on EQB to determine the best models for use in quantification of GHG emissions. Before the EQB publishes further guidance on this issue, the MPCA has decided to quantify direct GHG emission sources within the scope and boundaries confined to the Project area and the EAW.

The scientific community generally has consensus on the Intergovernmental Panel on Climate Change (IPCC) methodology for GHG. Under the 2016 Paris Climate Accords, all international reporting for purposes of compliance is done using the IPCC construct. The same is true for the reporting under the earlier 1992 UN Framework Convention on Climate Change, of which the U.S. is a signatory. To stay within the scientific mainstream in developing the GHG information in the EAW, the MPCA also uses this framework. To venture outside of this framework risks using data that does not have general scientific consensus for assistance in regulatory decision‐making. The MPCA uses the IPCC (Fifth Assessment Report) in the EAW to maintain consistency with present MPCA practice, and to remain firmly within the scientific mainstream on issues of GHG quantification, CO2‐equivalence, and choice of Global Warming Potential integration period.

Comment 24: The EAW fails to consider the effects of the GHG emissions from the Project. Additionally, MPCA did not attempt to determine whether the GHG emissions from the Project would have the potential for significant environmental effects. (80)

Response: The purpose of the EAW process is to disclose information about potential environmental impacts of a project. The EAW is defined by state statute as a “brief document which is designed to set out the basic facts necessary to determine whether an EIS is required for a proposed action” (Minn. Stat. § 116D.04, subd. 1a). The EAW form consists of 20 questions focusing on potential environmental effects, and these questions generally provide the information needed to determine if the project will have significant environmental impacts as outlined in Minn. R. 4410.1200.

Using linked global and also regional models of atmospheric GHG retention, climate and of natural and human systems, it is possible to evaluate the effects of a small marginal change in emission of GHGs.

12 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

These linked models were used by the Minnesota Public Utilities Commission to develop damage-cost estimates (externality values) for the next marginal ton of CO2 or other GHG emitted to the atmosphere from power generation. From the linked models, it is possible to back out the underlying response of the climate to marginal changes in emissions, miniscule as they may be on a per ton basis, as well as damages or impacts, usually monetized.

A project may still reach the significance threshold as part of a cumulative effect although individually it may be considered a minor contribution. The effects of additional GHG emissions from Waukon Dairy on global climate would likely be undetectable within the inter-annual variability of the climate system. These effects remain legitimate, but outside of usable modeling, would be impossible to extract from the observational evidence of the climate system. To conduct full‐scale modeling of the global climate system would be outside the scope of an EAW. The Waukon Dairy GHG emission increases would have an effect that can be demonstrated based on the best available current science, but as a matter of observational measurement, that effect probably cannot be extracted from empirical evidence of the operation of the climate system.

Comment 25: MPCA failed to perform a cumulative potential effects analysis to determine the impacts of GHG emissions from the Project. (80)

Response: MPCA provided in the EAW the following cumulative impacts analysis related to GHGs.

Greenhouse Gas Annual GHG emissions fluctuate, but fortunately, Minnesota has been on a general downward trend since 2005. While there are no state or federal caps on GHG emissions, the Next Generation Energy Act, Minn. Stat. § 215H.02, sets Minnesota GHG emission reduction goals of 15% from 2005 levels by 2015, 30% from 2005 levels by 2025, and 80% by 2050. The most recently available data (2016) shows the state’s total annual GHG emissions at 12% below the 2005 baseline.

The MPCA estimates that in 2016, activities in Minnesota released 154.2 million tons of CO2-e. Of the total 154.2 million, about 35 million tons CO2-e came from Minnesota’s agriculture sector. Animal agriculture accounted for about 10.5 million tons CO2-e, and crop agriculture accounted for nearly 27 million tons CO2-e. Together, Minnesota’s agriculture and forestry sector have decreased about 12% compared to the 2005 baseline, but emissions were highly variable between 2005 and 2016.

Global climate change results from the total accumulation of GHGs in the Earth’s atmosphere, as well as other manmade and natural factors. The GHG composition in the Earth’s atmosphere is changing and causing the planet’s climate to change. It is difficult to translate the Project’s incremental contribution to global GHGs and its effects on climate change globally or regionally.

In general, regional impacts from climate change may include the following effects: · Increased mean annual air temperature (summer and winter warming) · Increased surface water temperatures · Later onset of winter and earlier onset of spring · Precipitation may fall in fewer, but more intense storms · Species adapted to cold climates may shift out of the great lakes basin into Canada · Hardwood forests of oak and hickory may replace aspen and birch forests

13 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

· Moderate climate change may increase agricultural yields and food production, with some regional and annual variability

As indicated in Item 6.C. (in the EAW), the Project will directly release GHG emissions and indirectly cause GHG emissions from related activities, with total projected emissions from the facility after the Project is completed estimated at 76,106 tons of CO2-e per year. There are no Minnesota or National Ambient Air Quality Standards for GHGs. The assessment of GHG emissions and climate change is extremely complex. Currently, it is not possible to model the physical impacts of global or regional climate change, such as storm frequency/intensity or temperature increases caused by incremental GHG emissions. In other words, while agriculture contributes to climate change generally, existing scientific tools do not allow MPCA to quantify the specific effects of a particular feedlot or project on global or regional climate change impacts. There is currently an absence of regulatory guidance for analyzing GHG emission impacts. If climate models improve in predictive capacity or provide more regulatory guidance in the future, MPCA will incorporate those tools into its environmental review process at that time.

Comment 26: Commenters state that the GHG emissions from the Project are significant and that the MPCA must order an EIS. · According to the EAW, Waukon Dairy would lead to a substantial increase in GHG emissions of at least 76,106 metric tons of carbon dioxide equivalents each year – if not more (see measurement section of this comment). This is a significant impact and should trigger an EIS. (39) · MPCA must order an EIS because the Project’s GHG emissions have the potential to cause significant environmental effects. (80)

Response: The Minnesota Rules for environmental review do not have an established threshold for GHG emissions triggering a mandatory EIS. The need for an EIS is not based on GHG emissions, rather the potential for significant environmental effects. The MPCA is required to evaluate a project based on all four criteria outlined in Minn. R. 4410.1700, subp. 7. These criteria do not exclude the possibility that GHG emissions from a project could be determined to cause significant environmental effects and necessitate preparation of an EIS.

The Commissioner of the MPCA, following the criteria in Minn. R. 4410.1700, subp. 7, will make the determination on if there is any necessary information lacking in the record after carefully reviewing all the information in the EAW, written public comments, and the Responses to Comments. Upon reviewing all of the available information, should the Commissioner determine “that information necessary to a reasoned decision about the potential for, or significance of, one or more possible environmental impacts is lacking, but could be reasonably obtained,” shall either “A. make a positive declaration and include within the scope of the EIS appropriate studies to obtain the lacking information; or B. postpone the decision on the need for an EIS, for not more than 30 days or such other period of time as agreed upon by the RGU and proposer, in order to obtain the lacking information.” (Minn. R. 4410.1700, subp. 2a). (See also response to Comment 3.

Comment 27: Commenters are concerned about the air emissions on nearby neighbors. · As to the air pollution, ask the neighbors downwind how they feel about that! (23) · I am particularly concerned about the air emissions from these very large facilities and their effect on the health and well-being of surrounding neighbors. (72)

14 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

Response: Part 6 of the EAW details the expected impacts to air quality from the Project. Identified are potential sources of odor and air pollutants, and proposed on-site mitigation measures. In addition, the Project underwent air dispersion modeling using the EPA approved American Meteorological Society/Environmental Protection Agency Regulatory Model (AERMOD). AERMOD predicts that the Project will comply with the Minnesota Ambient Air Quality Standard (MAAQS) for hydrogen sulfide. In addition, AERMOD predicted that the Project emissions, when also including the emissions from the one neighboring feedlot in the nine square mile grid around the Project, would not result in concentrations of hydrogen sulfide and ammonia above the Minnesota Department of Health inhalation Health Risk Values (iHRVs).

The State of Minnesota does not regulate odors. The MPCA includes odor in the modeling for feedlot EAWs to provide local decision makers with expected odor levels from the Project. It is up to local decision makers how they will utilize the information in their permitting process. The modeling does predict that there will be some odors from the Project in the “Faint” range of odor intensity.

Land Application of Manure

Comment 28: The Minnesota Groundwater Protection Rule may not apply to manure application: however, DNR advocates that all requirements of the Groundwater Protections Rule be followed on all manure application sites. Minimizing nitrates from entering surface and groundwater through simple best management practices benefits Minnesota’s most valuable resource for people and wildlife: water. (3)

Response: MPCA notes the comment and will share the recommendation with Riverview, LLP.

Comment 29: Commenters are concerned about the environmental consequences of the large amount of manure that will be generated by the Project. · Then there is the matter of the disposal of the manure that one more CAFO brings to the watershed. At what point does the land become saturated to the point of contamination? The fall of 2019 saw the highest levels of E.coli in the Minnesota River Basin. Enough is enough!!! (7) · This expansion would add over ten thousand dairy cattle and would have major environmental consequences, as it is clear that the concentration of large numbers of animals in one place makes it very difficult to responsibly deal with their waste. (20) · Water above ground does not know any township, county, or state lines. Water below ground does not know any township, count, or state lines. Any run off from ditches may contaminate streams, then rivers, and eventually be a contributor to the dead zone in the Gulf of Mexico. Our Midwest acres are already contributing to the problem, and I do not like the idea of adding to it. (58)

Response: The Project will result in the generation of approximately 86 million gallons per year of manure and an additional 15 million gallons per year of feed pad runoff. Up to 7,300 acres of land will be required for land application for this amount of manure. Riverview has identified a total of 12,952 acres of cropland that they have available for land application of the manure to be generated by this project. Although this may be a larger volume of manure than the surrounding feedlots generate, Minn. R. ch. 7020 contains specific requirements relating to the application of manure from feedlot facilities in Minnesota. The requirements found in rules are designed to provide protection to Minnesota groundwater and surface waters and are based on University of Minnesota (U of M) Extension Service

15 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

recommendations. The rules require that nutrient (nitrogen) application rates from all sources (manure, commercial fertilizers, and nutrient credits from previous crops that were grown) not exceed the expected crop nitrogen needs for non-legume crops or the expected nitrogen removal for legume crops. In addition to applying nutrients from all sources at agronomic rates (nutrient applications based on nutrient needs of the crop that will be grown), the rules require nutrient testing of manure, soil testing, and calibration of equipment used for application of manure. MMPs are updated annually to adjust for newly measured levels of nutrients and crop needs. The requirements relating to manure application apply not only to the feedlot owner, but also anyone receiving manure from the Project.

Riverview’s Feedlot Permit application included a MMP describing how manure from the Project will be applied at agronomic rates. The MPCA reviewed the submitted MMP, including verifying that adequate land base is available for manure that will be generated from the facility, and found it meets Minn. R. ch. 7020 and permit requirements.

Comment 30: The EAW states that “Riverview will land apply manure at agronomic rates based on Attachment A of the MPCA MMP, and “Fertilizer Guidelines for Agronomic Crops in Minnesota” (BU- 06240-s) from the University of Minnesota Extension, revised 2001”. These guidelines are based on the Maximum Return to Nitrogen (MRTN), which centers around economic risk and cost factors, making it an inadequate tool to limit nitrate pollution.

We realize this is more an issue with the General Feedlot Permit, which has manure application guidelines based on MRTN, than it is an issue with this specific feedlot. We raised this issue in our comment on the General Feedlot Permit earlier this year. Still, it bears repeating that the Waukon Dairy EAW underestimates the operation’s environmental impacts. (39)

Response: Minn R. 7020.2225 subp 3. Item A reads as follows: Manure and process wastewater application rates must be limited as described in subitems (1) to (3) so that the estimated plant available nitrogen from all nitrogen sources does not exceed expected crop nitrogen needs for nonlegume crops and expected nitrogen removal for legumes.

(1) Expected crop nitrogen needs, crop nitrogen removal rates, and estimated plant available nitrogen from manure and legumes must be based on the most recent published recommendations of the University of Minnesota Extension Service or of another land grant college in a contiguous state. (2) Estimated plant available nitrogen from organic nitrogen sources, including manure, may deviate up to 20 percent from University of Minnesota Extension Service, or of another land grant college in a contiguous state, estimates where site nutrient management history, soil conditions, or cool weather warrant additional nitrogen application. When crop nitrogen deficiencies are visible or measured, remedial nitrogen applications above the 20 percent deviation can be made. (3) Nitrogen sources include commercial fertilizer nitrogen, soil organic matter, irrigation water, legumes grown during previous years, biosolids, process wastewater, and manure applied for the current year and previous years.

The MPCA has applied these rules to allow manure application at rates that do not exceed the nutrient recommendations developed by the U of M.

16 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

Current U of M crop nutrient recommendations for commercial fertilizer include a concept known as the Maximum Return to Nitrogen or MRTN. On face value, the MRTN appears to present farmers with different nitrogen recommendations based solely on the cost of crop production namely, the ratio of the price of nitrogen fertilizer to the price of corn. The table below summarizes the MRTN for corn production.

Source: https://extension.umn.edu/crop-specific-needs/fertilizing-corn-minnesota

The MRTN system of recommendations was initially developed primarily for commercial fertilizers meaning that it was not directly amenable to use when manure is the nutrient source. In response, the MPCA developed and published its interpretation of the U of M recommendations when manure is the nutrient source. This can be found at https://www.pca.state.mn.us/sites/default/files/wq-f8-18.pdf.

More recently (early 2020), the U of M published guidelines specifically for manure application. They can be found at: https://extension.umn.edu/manure-land-application/manure-application-rates. Below is a chart from that publication which identifies the maximum nitrogen recommendations for manure application.

17 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

These more recent recommendations, specific to manure applications, are identical to the MPCA requirements, which reinforces MPCA’s initial interpretation of U of M recommendations. The letter makes an assertion that the development of the U of M recommendations are heavily biased towards minimizing a farmer’s out-of-pocket expense for fertilizer and have little consideration for environmental protection. While the U of M recommendations are designed to minimize costs for a farmer, the underlying objective is to avoid applying excessive amounts of nitrogen. Applying excessive amounts of nitrogen means that not all nitrogen is utilized by the crop and therefore likely lost to the environment via nitrate leaching and other mechanisms. Therefore, although environmental considerations are not directly mentioned as a factor within the development of the U of M recommendations, implementation of the recommendations does result in environmental protection.

The letter claims that the MRTN based recommendation is incapable of meeting the requirements of Minn R 7020.2225 because it is solely based on economics and not what the corn crop actually needs to grow (ie. “crop nitrogen needs”).

The term “expected crop nitrogen needs” used in the feedlot rule is not explicitly defined. The term does not refer to the idea that without nitrogen a corn crop would not grow, as it most certainly would. Rather, this term refers to the common practice of nitrogen fertilizer application to increase the yield that a corn plant produces. The term “crop nitrogen needs” simply refers to the amount of fertilizer that will produce the desired crop growth goals.

When the feedlot rules were being developed, the Minnesota Legislature passed Session Law 435 in the year 2000. This law directed the MPCA to perform a number of activities related to the rule making effort that was underway at the time. The Session Law directs the MPCA to allow management of nutrients from manure when it is consistent with U of M guidelines. The Session Law reads as follows: (a) The pollution control agency shall amend the proposed permanent rules relating to animal feedlots and storage, transportation, and utilization of manure, published in the State Register, volume 24, number 25, pages 848 to 884, December 20, 1999, according to this section and pursuant to Minnesota Statutes, section 14.388. …….

18 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

(d) In the rules, the agency shall: ……. (11) provide that the management of nutrients from manure can be consistent with guidelines, definitions, or recommendations published by the University of Minnesota or another land grant college in a contiguous state.

In its rule making effort, the MPCA changed its proposed rule language to respond to this directive. Most notably the provision for the allowance of recommendations from another state was added to the proposed rule. However, no change was made to the rule language that included the term “crop nitrogen needs”.

This topic is also discussed in the May 9, 2000, administrative law judge report related to the rule making effort that year. In paragraph 42 of this document, the administrative law judge states “The legislature further directed the Agency to allow any nutrient management that is consistent with guidelines, definitions, or recommendations published by the University of Minnesota or another land grant college in a contiguous state.”

This plainly states that land application following the recommendations of the U of M should be allowed.

The Statement of Need and Reasonableness (SONAR) for the Feedlot Rules also discusses the use of U of M recommendations for determining the appropriate land application rate. The SONAR does acknowledge that excessive application of nitrogen can lead to water quality issues; however the MPCA chose not to develop its own nutrient application rate standards but rather to utilize the recommendations of the U of M. The SONAR states: “The agency proposes not to publish a specific rate table in the rules due to the widespread availability of University of Minnesota recommendations at county extension offices. If specific rate tables were proposed, the agency would need to consider rules revisions when new research results are found and recommendations are refined. Establishing these tables outside of the proposed rules is reasonable because the table rate values are not developed by the agency, but are based on the research done by the University of Minnesota and produced in cooperation with other agencies. Thus, the recommendations are made to match the plant needs and the ability to meet these needs by a neutral party to the regulatory process not the agency or delegated county. Additionally, the University of Minnesota’s research will ensure that science would be used in making these recommendations.” (emphasis added)

As is evident from the documents and directives produced at the time of the rule making effort, the term “crop nitrogen needs” is analogous to the nitrogen recommendations of the U of M.

It also bears noting that at the time of rule development the maximum U of M nitrogen recommendation for corn production was 220 lbs of nitrogen per acre. This is well above the current U of M recommendation of 195 lbs. of nitrogen per acre. Hence, even if the current recommendations are solely based on economics as claimed, the end result is still an application rate that is significantly lower than that which would have been allowed at the time of rule development.

19 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

Comment 31: MPCA must supplement the EAW or order an EIS to analyze the cumulative effects of Riverview’s manure on water quality and that the EAW is incomplete without a full analysis of the cumulative effects of the manure from all feedlots in the region. (80)

Response: The MPCA does a Cumulative Impacts Analysis of land application of manure by looking at the impaired waters in the area. If there are impaired waters in the area, then there is a cumulative impact. MPCA then reviews the Projects MMP to determine if it is compliant with recommended best management practices (BMPs) related to the identified impairment. The identified impairment in the Waukon Dairy area is Mashaug Creek for aquatic recreation due to high concentrations of E. coli. The recommended BMPs for controlling pathogens and bacteria are to store the manure in anaerobic pits; and, to incorporate the manure as soon as possible when being land applied. Waukon Dairy will store all of its manure in anaerobic basins prior to land application. Additionally, the Commercial Animal Waste Technician will be incorporating the manure at the time of land application.

Minn. R. 4410.0400 Subp. 3. “When environmental review documents are required on a project, the proposer of the project and any other person shall supply any data reasonably requested by the RGU which the proposer has in his or her possession or to which the proposer has reasonable access.” MPCA rules do not require MMPs on feedlots under 300 AUs nor does MPCA maintain the MMPs on feedlots between 300-1,000 AU. Thus, a review of all the land application of manure from all feedlots in the region is beyond the standard of data to which the proposer has reasonable access.

Facility Design

Comment 32: The waste stream of a dairy operation of this size is enormous, and its effects on local streams and aquifers, even after some level of “treatment” will cause enormous damage to these aquatic resources. Of course it is possible to completely contain the waste products of a dairy operation as large as this expansion will be. However to do so would be very expensive, even if it was coupled with an anaerobic digestion system generating methane which could be used by the dairy and/or sold to the gas market. It is incumbent on the MPCA to protect Minnesota’s aquatic resources. If the waste stream from the proposed dairy expansion cannot be completely retained on site, this proposal should be rejected! (24)

Response: The EAW outlines design, construction, and operational BMPs Riverview will use to comply with the discharge standards of Minn. R. pt. 7020.2003 and the Feedlot Permit, Section 10. This includes the requirement to manage the operation of the facility to contain all contaminated runoff and the direct precipitation up to the volume from a 25-year 24-hour storm event. Additionally, the feedlot rules and Feedlot Permit require facilities with 1,000 AUs or more to design liquid manure storage areas (LMSAs) to provide at least nine months of storage capacity. Sizing LMSAs to have more than the minimum storage capacity is a choice made by the Proposer. The plans submitted for Waukon Dairy indicate there will be 14 months of storage capacity. Having more than nine months of storage capacity is allowed and encouraged as it provides facilities with added flexibility when weather and field conditions are not conducive for application of manure.

Comment 33: The MPCA has denied permits for CAFOs before. Citing the need to address elevated levels of nitrate in drinking water in southeastern Minnesota, MPCA denied a general permit for the proposed Catalpa swine facility in 2018. Extreme storms and flooding are likely to cause an overflowed

20 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

or breached manure lagoon at Waukon Dairy at some point. This should trigger an EIS to further explore the environmental risks of the proposed expansion. (39)

Response: MPCA has never denied a feedlot from obtaining an National Pollutant Discharge Elimination System (NPDES) permit. MPCA did deny the Catalpa facility coverage under the General NPDES permit; however, the facility had the option to make application to the Agency for Individual NPDES permit coverage at their proposed site. A noteworthy difference between the Waukon and Catalpa facilities is the regional geology. The area surrounding Waukon Dairy, primarily fat heavy clay soils, is substantially different from the area where the proposed Catalpa facility was to be located, in the karst limestone region of the state where elevated nitrates in the drinking water can be a problematic issue in some locations.

The Waukon Dairy facility is designed to meet Federal and State rules, using the most current data available. Waukon Dairy is designed to handle and store more than a single 25 year/24 hour storm event, which is more than rules require. The manure lagoon is engineered to be constructed in a manner that will withstand storm event influences and will maintain its functional integrity into the future.

Disease

Comment 34: In addition, the susceptibility of such concentrations of dairy production to disease threatens the shutdown of the entire industry, rather than occasional local or regional outbreaks. (37)

Response: Riverview's cattle are under close supervision by veterinarians, and has no history of infectious disease outbreaks. Furthermore, Riverview operates a "closed herd" model, which means Riverview's cattle are not mixed with cattle from outside of Riverview's system at any point in their life cycle. This mitigates the risk that any potential for disease at Waukon Dairy threatens to any other portion of the industry.

Comment 35: Furthermore, if the pandemic has shown us anything, it’s that relying on only a few large operations for our food supply is not resilient. Fewer dairy farmers on the land means less access to milk when there is an outbreak of illness of natural disaster in one area. This is not the direction our food system should be heading. (67)

Response: The pandemic did not result in shortages of milk. If anything, it led to short-lived excess supplies of milk. According to USDA statistics, Norman County is home to only six dairy operations that sell milk. (See: https://quickstats.nass.usda.gov/results/9A1ECE95-9785-3EEC-A672-952D5BF04DF7) Adding one more dairy farm in Norman County will not result in a concentration of operations in one area at risk of natural disaster. It is estimated that global food production needs to increase by more than 50% over the next 30 years to keep pace with growing world populations. (See: https://www.fb.org/newsroom/fast-facts) This is true in light of the fact that 35,000,000 Americans already struggle with hunger. (See: https://www.feedingamerica.org/hunger-in- america/facts) Growth in our food supply would appear to increase resilience and reliability and prevent the potential for any future supply shortages.

Comment 36: In this age of corona virus we are learning about disease transmission through the air. This has been understudied in large animal confinement operations. (72)

21 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

Response: The most common diseases for dairy cattle are not known to be transmitted through the air. Furthermore, the herd at Waukon Dairy will be vaccinated against known respiratory diseases and closely monitored by on-staff, local, and state veterinarians.

Comment 37: What disease vectors are in the emissions from these facilities? Are they harming human health? (72)

Response: On-staff veterinarians at Riverview are unaware of: (a) any known human illness resulting from air emissions from dairy farms, or (b) known diseases capable of transmission from dairy cattle to humans through the air.

Historical and Archaeological Properties

Comment 38: Based on our review of the project information, we conclude 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 that will be affected by this project. (2)

Response: The MPCA notes the comment; no response to this comment is necessary.

Comment 39: Please note that this comment letter does not address the requirements of Section 106 of the National Historic Preservation Act of 1966 and 36 CFR § 800. If this project is considered for federal financial assistance, or requires a federal permit or license, then review and consultation with our office will need to be initiated by the lead federal agency. Be advised that comments and recommendations provide by our office for this state-level review may differ from findings and determinations made by the federal agency as part of the review and consultation under Section 106. (2)

Response: The MPCA notes the comment; no response to this comment is necessary.

Miscellaneous

Comment 40: To minimize visual, noise, and odor impacts to nearby neighbors, DNR recommends coordinating with the local Soil and Water Conservation District to plant a coniferous shelterbelt surrounding the proposed dairy. (3)

Response: The MPCA notes the comment; no response to this comment is necessary.

Socio-Economic

Comment 41: Commenters state that the market consolidation being done by large dairies is driving small to mid-sized farms out of business. · Right now, and immense amount of market consolidation is happening in the dairy industry, and it’s kicking the last few small to mid-sized dairy farmers off the land. When our neighbors who raise dairy cows are struggling to make a profit – even going so far as dumping milk to bring down oversupply -- one operation adding 10,500 dairy cattle to the market is unacceptable. (5, 7, 8, 10, 11, 12, 14, 15, 16, 17, 18, 21, 22, 23, 24, 26, 27, 28, 29, 30, 32, 33, 34, 35, 36, 37, 38, 40, 42, 43, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 59, 60, 61, 62, 63, 64, 65, 66, 68, 70, 71, 73, 74, 75, 76, 77, 79, 81, 83, 86, 87, 88)

22 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

· What are we telling our small dairy farmers when we watch their demise and then support a large dairy coming in from outside the community and profiting in their place? (8) · The dairy industry in Minnesota, and across the US, is struggling. All the local and small to mid- sized farms are being snuffed out by larger companies. Why should a massive 10,000 cow operation be allowed when our small farmers are struggling to make a profit right now? (13) · I am against increasing the power of corporations which in turn eliminates the ability of small farmers to operate and earn a living. Corporate farming increases the impact of global warming which in turn affects the quality of life in our communities. We at least can work with local farmers who share the concerns we all have for the equality of our lives. It has been shown time and time again that large corporate farming does not consider their effect on neighbor’s lives. (17) · The oversized agriculture operations do not seem to be the answer. The negative environmental effects are unacceptable when carefully considered. This makes it nearly impossible for smaller farms to thrive. (19) · Allowing this to go through is unacceptable. Both for our small farmers and our communities and for the environment. Is this what you want to pass on to your children? (29) · In addition to environmental considerations, MPCA must consider the well-being of the state’s family farmers in its decisions. (39) · Mr. Fehr was responsible for the elimination of the Citizen’s Advisory Board that gave Minnesota’s citizens to testify what it meant to local communities and elimination of many small farms that they bought up to produce feed for their huge herds. (57) · In addition, this particular model of dairy (like big box stores) directly puts unfair pressure on dairy farms such as our, pushing family farms out of the dairy business. (58) · The last three dairy farms in our area of Pine County quit milking or went bankrupt this year. I previously worked for a family-owned dairy processing plant in another state until I was laid off and the plant closed shortly after. Hundreds of people lost their jobs. Market consolidation is ruining the dairy industry for farmers and workers, and one operation adding 10,500 dairy cattle to the market at this time is unacceptable. This is economic injustice. (67) · Right now, I see small dairy farms losing out and shutting down as these huge operations take precedence. We need to keep our small farmers in business and not support these large dairy operations for many reasons. (69)

Response: Comments are beyond the scope of the EAW because the information on this issue would not inform a reasoned decision about the potential for or significance of the environmental effects of the Project under Minn. R. 4410.1700.

Comment 42: Commenters state that we must support small to mid-sized farms as they are more responsible stewards of our environment. · Allowing Riverview to consolidate huge portions of the dairy market in Minnesota not only robs small to mid-sized dairy farming families of their livelihood, it erodes one of the best solutions that we have to environmental issues by taking more small farmers off the land. In the face of flooding, drought, and extreme storms, farmers are ready to drive solutions in agriculture through regenerative that build soil, sequester carbon, and get animals back on the land where they belong. (5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 21, 22, 23, 24, 26, 27, 28, 29, 30, 32, 33, 34, 35, 36, 37, 38, 40, 42, 43, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 59, 60, 61, 62, 63, 64, 65, 66, 68, 69, 70, 71, 73, 74, 75, 76, 77, 79, 81, 83, 86, 87, 88)

23 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

· The consolidation of 10,000+ cows in a small area has huge environmental consequences for the surrounding land and water. The small farmers that are connected to the land are also its best stewards. The building of soil health the produces better food and forage by the use of regenerative practices that more and more small farmers are adopting is what we need to preserve our valued Minnesota natural resources under stress from flooding, drought, and extreme storms. We need to support small farmers and their communities and get animals back on the land where they belong. (44) · As you must be well aware, we are in the midst of a global climate crises. Indeed, as LSP states, we must pivot AWAY from factory farming and move aggressively to support small farms that focus on food supply, agility, and diversified products. Factory farms are not “inevitable,” as Riverview would have us believe. Riverview produces great wealth to the corporation that runs it, while costing our communities far too much in lost livelihoods and endangering water supplies. (9) · Small and mid-sized farms are the future of our country. They keep the economy localized, provide fresher foods, and are better for the environment. Riverview should not be allowed to take up so much space on the market and push our local farmers out. (13) · I believe it only makes sense to support small to midsize farm operations. If we want to positively affect family’s health and finances, the environment and the food produced, we must consider how that can be done. (19) · Further, it will help to drive smaller operations, which tend to be more responsible with their environmental stewardship, out of business. (20) · Our small to mid-sized farm owners have demonstrated that they are far more sensitive to environmental issues, which is crucial in today’s world. Corporate farms, on the other hand, are committed to making as much profit as possible by whatever means. Their track record with issues of air, water and soil is dismal. (23) · It is not the large farms that will be able to take care of the beautiful natural resources we have in Minnesota, it is the smaller farmers who must put up with the negative impacts of not properly tending to the land. In a small community, neighbors really matter, whether it’s helping to put out a house or grass fire while you’re waiting the half hour for the fire truck to come, or whether you need a hand with a birthing cow. Or, whether your farming practices are tainting the water and air in your local community. (25) · Historically small farmers make greater strides toward land stewardship as opposed to large factory farm operations. Please do your due diligence to protect our economy as well as out air and water quality. (41) · Here, where I currently live, I have friends who raise 280 dairy cows and are struggling to make a profit and one operation adding 10,500 dairy cattle tot eh market is unacceptable! Allowing Riverview to consolidate huge portions of the dairy market in Minnesota, it robs small to mid- sized dairy farming families of their livelihood, it erodes on of the best solutions that we have to environmental issues by taking more small farmers off the land. (57) · I can’t imagine having neighbors stink up the air and threaten the water supply for the profit of big business. Family farms are good stewards of the land. (68) · I live on a small farm myself and I am greatly saddened to see the negative environmental and social impacts of the increase of large-scale agriculture, specifically in dairy, on the health and economic vitality of our local communities. We need to value small and mid scale farmers who use responsible practices and keep them on their land. (83)

24 Waukon Dairy Responses to Comments on the Waukon Township, Norman County Environmental Assessment Worksheet

· As a young farmer in Western MN, I see that there are many farmers, young and old, that want to start farming and want to continue farming. However, these huge dairy operations are taking over market control and seizing all opportunities to compete. This market consolidation is terrible for our land and affecting the vitality of our rural communities. We must prioritize the good of many farmers over the growth of one farmer’s business. (87)

Comment 43: Commenters state that dairies of this size take more than their fair share of water and cause excess damage to roads. · I have experienced Riverview Dairies first hand when I lived in Stevens County, MN. When their operations began. It seemed harmless in the beginning, but as they expanded at the Morris site and into surrounding counties, I saw the damage to local roads, the extreme amount of water they used and their political pressure on the MN Legislature. (57) · Businesses of this size take more than their fair share of water, plus township, county, and state road use. (58)

Comment 44: Economic concern is also paramount. There are studies showing that ten 100 cow dairies bring more economic stimulus to a community than one 1,000 cow dairy. That cast serous doubt on the economic merits on the business proposal. (58)

Comment 45: Property values of neighbors is lost, at least for the house sites already there. (58)