A Dane County judge has ruled the Department of Natural Resources can't backtrack from an earlier decision and must proceed with imposing environmental protections on a large dairy farm expansion.
The ruling is the most recent example where the regulatory authority of the DNR has been called into question. The judge said the agency in this case had the power to place limits on farmers to protect public waters.
The issue is far from settled, and in this instance the owners of the farm say they might appeal the ruling.
The court decision is the latest development in a dispute over plans by Kinnard Farms to expand dairy operations by thousands of cows in Kewaunee County, where groundwater contamination has fanned tensions between farmers and non-farmers.
Dane County Circuit Judge John W. Markson ruled last week the DNR must require Kinnard to install groundwater monitoring equipment and place a cap on the number of cattle the farm could keep. Both requirements are aimed at protecting groundwater.
The cattle population has grown sharply in the county — a region prone to thin soils and fractured bedrock. The mix has led to polluted wells, with environmentalists and others blaming excessive manure spreading. Farming interests have suggested in some cases that other causes are to blame.
The case dates back to March 2012 when Kinnard sought permission from the DNR to expand its herd. Environmental groups and others challenged the expansion.
A state administrative law judge ruled the farm could expand, but said the DNR must require monitoring and a maximum limit on cows. Administrative Law Judge Jeffrey Boldt noted that 'many members of the public were deeply upset about what could only be described as a crisis with respect to groundwater quality in the area.'
Kinnard appealed, and in November 2014, DNR Secretary Cathy Stepp denied the appeal.
Eight months later, and 'for reasons that remain obscure,' Markson wrote, the DNR in August 2015 asked the state Justice Department whether the agency had the authority to impose such limits on farms because of a 2011 law, Act 21, that says state agencies can't dictate requirements on parties unless the power is spelled out in law.
One day later, the Justice Department issued a legal opinion saying the DNR does not have such authority. In September 2015, the DNR announced it was granting Kinnard a permit. The farm said it would grow from 4,000 to 6,700 milking cows.
This spring, the Justice Department used similar reasoning to advise the DNR it could not consider the effect of multiple wells on streams and lakes when reviewing permits for new high-capacity wells. Farms again were at the center of the dispute.
Both opinions by Republican Attorney General Brad Schimel to a GOP-led DNR raised questions.
'This continued attempt ... to limit the DNR's power is not based on law,' Elizabeth Wheeler, an attorney for Clean Wisconsin, said Monday.
Markson said Act 21 must be interpreted in conjunction with other laws that give the DNR the power to govern waste water. He said Stepp's decision to reverse herself was 'untimely and beyond her authority, ' adding 'our administrative process (does) not allow an agency to change its mind on a whim or for political purposes.'
The DNR said it was reviewing the decision and consulting with the Justice Department.
Kinnard said in a statement: 'Unfortunately, our family farm finds itself in the middle of a process that was created by the (DNR) making the wrong decision in the first place. This case is ultimately about the scope of DNR's legal authority and not our farm.'