A Ministry of the ELCA - Supported by World Hunger

Ruling in CAFO case adds new twist to DNR powers

Written by LOPPW | 07/19/2016

A Dane County judge has added a new twist to a simmering dispute about the state Department of Natural Resources’ authority to protect water quality.

Judge John Markson ruled the state can set limits on large dairy feedlots to protect water from pollution, overturning a decision of DNR Secretary Cathy Stepp.

The case is complicated, but conservation groups said the ruling was important in part because Markson rejected the view that a 2011 state law aimed at strictly limiting the power of state regulators was applicable.

That law was the basis of a formal opinion Attorney General Brad Schimel issued in May prompting the DNR to begin issuing permits for high-capacity wells without considering the impact of all nearby wells on lakes, streams and groundwater.

Environmentalists have said they expect to challenge Schimel’s opinion.

“We are pleased that courts are rejecting the claim that DNR’s hands are tied by 2011 Act 21, and we hope this is the beginning of many court decisions that restore one of the most critical functions we rely on our DNR for: protection of our water,” said Elizabeth Wheeler, senior staff attorney for Clean Wisconsin.

Markson ruled Friday in a lawsuit filed by Clean Wisconsin and Midwest Environmental Advocates concerning a pollution discharge permit sought by Kinnard Farms in Kewaunee County.

Kinnard wanted to increase its herd to 6,200. Conservation groups opposed the permit, noting estimates showing that number of cows would produce more than 70 million gallons of manure a year in an area where one-third of tested drinking water wells were contaminated.

 In 2014, administrative law judge Jeffrey Boldt ordered the DNR to attach conditions to Kinnard’s permit, saying “massive regulatory failure” had led to the water contamination.

The permit should include a tighter cap on the herd size and require monitoring of groundwater for pollutants, Boldt said.

The DNR initially told a Kewaunee County court it had adopted Boldt’s decision, but months later the agency requested an opinion from the state Department of Justice, which cited Act 21 and said because state statutes don’t specifically allow caps or monitoring, the DNR can’t require them.

Markson said DNR had no authority to reverse its decision adopting Boldt’s decision.

“The laws that provide structure and predictability to our administrative process do not allow an agency to change its mind on a whim or for political purposes,” Markson wrote in his ruling. “The people of Wisconsin reasonably expect consistency, uniformity, and predictability from their administrative agencies and from the Department of Justice.”

Schimel spokeswoman Rebecca Ballweg said the DOJ was disappointed.

“We still believe that Act 21 is applicable and that the agencies must have explicit authority to act,” Ballweg said.

A DNR spokesman said the agency was reviewing the ruling.