DBA files lawsuit against DNR, says agency is "overreaching its authority"
GREEN BAY - A lawsuit filed this week in Brown County Circuit Court accuses the Wisconsin Department of Natural Resources of "overreaching its legal authority" regarding key regulations that impact farms across Wisconsin.
The lawsuit's plaintiff, the Dairy Business Association which serves as an advocate for dairy farmers, is demanding that the state rein in the DNR on how it implements new regulations without going through an approval process required by state law.
According to a news release issued by the Green Bay-based group, the lawsuit deals specifically with one example of this pattern of what is calls 'unlawful behavior'. citing recent changes to how farmers manage rainwater that comes into contact with feed storage or calf hutch areas.
"Those changes, in which the DNR abruptly abandoned its own earlier directives, are causing costly fixes and still more uncertainty for farmers," the release points.
“We’re not looking for a free pass on regulations. We’re asking the DNR to follow the rules,” said Mike North, president of the association. “The agency clearly is overstepping its legal boundaries on this and other issues.”
DNR spokesman James Dick said the agency does not comment on pending litigation.
Reversal on VTAs
The group says that for years, the DNR encouraged farmers to build what are called vegetative treatment areas (VTAs) where the water is safely and naturally treated to prevent runoff and protect water quality.
Just last year, the DNR issued a new directive, requiring farmers to collect all the water and add it to manure pits for spreading on fields.
Despite claims by the DNR that it’s following directives from the U.S. Environmental Protection Agency, DBA officials say the collection of water in this way is not required by federal law.
The DBA goes on to say that the move circumvented Act 21, which requires agencies to follow a specific method of rulemaking based on public transparency and lawmaker oversight. The lawsuit seeks to stop DNR’s ongoing efforts to skirt the formal rulemaking process.
“Farmers are not above the law. The Department of Natural Resources shouldn’t be either,” North said.
North said the reversal on VTAs is causing farmers to spend millions of dollars on new storage lagoons and calf hutch improvements, creating confusion and uncertainty, and actually increasing the risk of pollution, he said.
“The DNR — unfairly, unnecessarily and illegally — is putting the livelihoods of dairy farm families at risk,” he said. “They need to be treated fairly and provided with predictability in order to run their businesses successfully.”
Much at stake
The lawsuit also addresses a farm’s duty to apply for a permit. Despite a state law that binds the DNR to federal standards, the DNR has incorrectly adopted its own contradictory requirement, he said.
North said the hope is the lawsuit will result in a harmonization of state and federal law, while still providing for environmental oversight of farms.
“Dairy farmers are committed to doing the right thing for their cows, their communities and the environment,” he said. “Now, we need the DNR to do the right thing in regulating our farms.”
Moreover, North said, “This lawsuit is about more than VTAs and calf-hutches; it is about preventing the DNR from ignoring the law.
“And this affects more than farmers,” he conintued. “Many businesses and others who deal with the DNR are frustrated as well. All of us — the public — should be concerned when a state agency exceeds its authority. There is a tremendous amount at stake.”
And at a time when farmers are fretting over low milk prices and a tightening farm credit market, costs to build new storage lagoons or calf barns or improve calf hutch areas may be out of reach.
'Not only do these new requirements harm existing users of these systems, they create uncertainty for farmers who want to grow or make other improvements to their facilities,' DBA officials said.