Environmental groups challenge DBA-DNR settlement, file lawsuit

A handful of environmental groups are challenging a settlement the state Department of Natural Resources reached over large livestock farm regulations.

Midwest Environmental Advocates (MEA) filed a lawsuit last week on behalf of the Clean Water Action Council, Milwaukee Riverkeeper and the Wisconsin Wildlife Federation alleging the settlement opens the door to pollution and the public never got a chance to provide input.

The Dairy Business Association (DBA) filed a lawsuit in July alleging the DNR improperly blocked farms from using vegetation patches to filter pollution, improperly assumed oversight of calf hutches and illegally required farms to get pollution permits regardless of actual pollution.

The DNR settled the case in October, agreeing vegetation patches are valid pollution-control systems and to stop regulating hutches. The dairy association agreed to drop its illegal permit claims.

"We hope to invalidate terms of the DBA-DNR settlement that make it more difficult for the DNR to use its experience and the best available science when regulating large industrial farms," said Sarah Geers, attorney for MEA. "Further, we are asking the court to declare that this settlement violates the law because it changes DNR policy."

Following the ruling in late October, DNR spokesman James Dick said that the settlement did not change any current environmental protections.

"Pollution that makes it through the vegetation patches into navigable waters will still be regulated under state and federal law and comply with state water quality and groundwater standards," he said.

Dick said the settlement also reaffirms the DNR has the authority to regulate concentrated feeding operations. 

"The DNR feels the settlement is an efficient and balanced resolution of (a) complicated case," he said.

Dick declined to comment on the pending litigation.

Geers said the environmental groups tried to intervene in the lawsuit filed by the DBA in July in an effort to defend DNR's authority to protect the health of the people and the environment.

"If these organizations were given the opportunity to participate, we would have zealously defended the public interest while working with DBA and DNR to come to a mutually agreeable solution that prevented future litigation," Geer said.

DBA President Mike North said the July lawsuit was never about rolling back regulations, but rather enforcing existing rules and policies.

"A new rule is not necessary to follow existing standards. The settlement keeps in place all the environmental safeguards for water quality that were properly created and it does not change the duty to comply with federal law," North pointed out. "As a result of the settlement, those existing standards will be more fairly and effectively applied on a farm-by-farm basis. Current practices will continue where they are working and farmers will need to make changes when the practices aren't working."

While the DBA contends its legal action was about process—Geers says the DBA-DNR settlement went much farther than that.

"The settlement makes it more difficult for the DNR to use its scientific knowledge and experience to prevent water pollution," she said. "This is where the settlement agreement goes too far, and we felt it necessary to push back to defend the DNR's authority to protect public health and the environment."

If new rules are warranted, North says they must be authorized by statute and created through the proper rule-making process.

"The settlement emphasizes that the DNR cannot make up rules by the fly. The environmental groups that filed the petition apparently agree with this. There is a process that must be followed, and that process promotes public participation, legislative oversight and transparency," North said. "That is good for farmers, that is good for environmental groups, that is good for everyone."

The Associated Press contributed to this story