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MILWAUKEE - A Milwaukee County Circuit Court judge will allow a lawsuit filed by a handful of environmental groups challenging a settlement that the state Department of Natural Resources reached with a farm group over livestock farm regulations.

Judge William Pocan denied the DNR's motion to dismiss a case brought by Midwest Environmental Advocates (MEA) on behalf of the Clean Water Action Council, Clean Wisconsin, Friends of the Central Sands, Milwaukee Riverkeeper and the Wisconsin Wildlife Federation alleging that the settlement between the DNR and the Dairy Business Association (DBA) opened the door to pollution and thwarted meaningful public participation.

The DBA filed a lawsuit in July 2017 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, 2017, agreeing vegetation patches are valid pollution-control systems and to stop regulating hutches. The DBA agreed to drop its illegal permit claims.

At the time, MEA Attorney Sarah Greers said the group had hoped to "invalidate terms of the DBA-DNR settlement" and would ask the court to declare that the settlement violated the law because it "changed DNR policy."

While a news release on MEA's website claims the settlement between the DNR and DBA removed the current legal authority of the DNR staff charged with protecting water quality, DNR spokesman James Dick disagreed.

Following the ruling in late October, 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 reaffirmed that the DNR has the authority to regulate concentrated feeding operations. The DNR spokesman declined to comment on the current litigation.

"Skirting the legal process"

MEA Executive Director Kim Wright said the quick, out of court settlement allowed the DNR and the Dairy Business Association (DBA) to "skirt the legal process" and "diminished the right for meaningful participation by those most at risk", according to a news release posted on the group's website.

“They had to go to court to do it, but today a diverse group of citizens dedicated to Wisconsin’s clean water future preserved the public’s right to have a say in whether or not the DNR can make drastic changes in water regulations without following the legal rulemaking process,” Wright said in the news release.

John Holevoet Director of Government Affairs for the DBA said the out of court settlement followed the pattern of most litigation.

"Most cases that have been litigated in our country and are brought are settled out of court by the parties involved in the litigation and that's exactly what happened here," he said, not an effort to conduct a "backroom deal" as alleged by Greers in the news release.

The Dairy Business Association (DBA) filed the initial 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. As part of the agreement, the dairy association agreed to drop its illegal permit claims.

At the time, Holevoet said the dairy business group felt the DNR was making de facto rules out of guidance documents without having the political authority to do so and without following the process that promotes public participation, legislative oversight and transparency.

"It's fascinating that MEA is using the same argument we made when we filed our lawsuit. No rules were made as a result of our settlement and no guidance documents were produced as a result of the settlement," Holevoet said. "Now the MEA is trying to turn that logic back on the DNR and DBA now."

This week's action by Judge Pocan came as a result of the DNR's motion to dismiss the petition for judicial review, and instead opined that the plaintiffs' argument warranted a judicial review.

"We shouldn't read too much into this very early decision," Holevoet said. "I think part of the intention (of MEA filing the lawsuit) is to try to litigate the issue even beyond what was originally on the table by making this into a broad discussion about ag policy, environmental policy and the way that CAFOs are regulated in the state, which our lawsuit wasn't about.

"I definitely feel they're trying to make political hay and score public relations points more than doing anything else," he added.

The MEA alleges that the 2017 settlement conflicts with state statues and rules and limits DNR's authority under current law to prevent water pollution. 

"This is where the settlement agreement went too far, and why it was necessary for public interest groups to push back to defend DNR’s authority to protect our health and our environment," the group stated.

DBA President Mike North told the Wisconsin State Farmer that 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 said.

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

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