Lawsuit could limit authority of Wisconsin DNR over large dairy farms

Lee Bergquist
Milwaukee Journal Sentinal
In this 2014 photo, a channel containing manure flows from a farm field, eventually reaching the Little Eau Pleine River in Marathon County.

A lawsuit by a farm organization alleges the Department of Natural Resources lacks authority in most cases to regulate the practices of large dairy farms, a sector of agriculture under growing scrutiny. 

A court win by the group could have wide-ranging implications by limiting the role of the DNR at a time when environmentalists and some rural residents are calling for more — not less — state oversight of farms and their manure-handling practices.

The Wisconsin Dairy Business Association's lawsuit challenges the underpinnings of the state's permit system for large dairy farms.

The group said the DNR is relying on authority over farms it legally does not have. John Holevoet, director of government affairs for the farm group, said most states don't require large farms to be regulated by a state water permit. 

The dairy association, in part, references a law Attorney General Brad Schimel cited last year that has led to less state regulation of groundwater.  

In a formal opinion, Schimel, responding to a request from Republican legislators, said the DNR lacked the authority to deny well applications even if an irrigation well posed harm to nearby streams and lakes.    

Schimel pointed to a 2011 law that reins in the power of state agencies by requiring them to first obtain approval from the Legislature before imposing regulations. 

In the suit, the association says that DNR has no authority in most cases to require large-scale farms to obtain state water discharge permits. The permits impose significant regulations, including requirements on the way manure is spread.

Large-scale farms or concentrated animal feeding operations house at least 700 adult cattle. 

In Wisconsin, the number of  CAFOs has grown by 400% from 50 in 2000 to 252 in 2016, agency figures show, and has played a key role in growing milk production as farm numbers fall.

The group's suit was filed in Brown County on Thursday. In a news release, the association highlighted its concerns over DNR requirements and how rainwater is managed on farms.

But Kewaunee County Supervisor Lee Luft said that while the group's press statement dealt with managing rainwater, the larger issue is its contention that large farms in most cases would not be required to obtain a wastewater permit.  

"If anyone really believes the Dairy Business Association and its members were interested in finding solutions to our problems, their suit should put an end to that," Luft said.

Kewaunee County in northeastern Wisconsin has nearly 100,000 cows, and residents there have struggled with polluted wells and manure runoff.

The lawsuit says the DNR is overstepping its authority by requiring a CAFO to obtain a wastewater permit when federal regulations say a permit is only needed if there is a discharge of manure and water into streams.

That virtually never happens, so CAFOs would not be required to be regulated by such permits. A CAFO, however, could still come under regulation if it is found to be polluting the state's waters. 

"I don't think you are going to see a radical change in outcomes," Holevoet said.

"We have water quality issues, and I am not convinced that we have a highly successful model now."

Holevoet reasoned the DNR — whose wastewater program was the subject of a critical independent state audit in 2016 — will have more resources to look for problems on farms if the agency's staff is not tied up with permitting.