Wis. Faces Judgement on Water Quality

OMAHA (DTN) -- The state of Wisconsin could soon clamp down harder on concentrated animal feeding operations depending on the outcome of a case now before the state's highest court.

The Wisconsin Court of Appeals for the second district on Wednesday recommended the Wisconsin Supreme Court hear a case that includes the consolidation of eight separate cases that could determine whether the state's department of natural resources has broader authority to impose water quality permit conditions on concentrated animal feeding operations, or CAFOs.

Over the past decade, the state's DNR has faced legal challenges from citizen petitioners, challenging the agency to impose stricter restrictions on CAFOs. The state has argued a state law prevents the DNR from imposing certain permit conditions that are not spelled out in law.

BUMPING HEADS

Bumping heads in Wisconsin are a court opinion in the 2011 case of Lake Beulah Management District v. DNR and the 2011 Wisconsin Act 21. The Wisconsin Supreme Court has been asked to decide which of these takes precedence.

In the Lake Beulah case, a court held "general standards are common in environmental statutes, and the fact they are broad standards does not make them non-existent ones."

Act 21, passed by the state's legislature, does not allow state agencies to implement or enforce any standard, including as a term or condition of any license issued by the DNR, unless explicitly required or permitted by law.

KINNARD FARMS

One of the lawsuits involves Kinnard Farms Inc. in Kewaunee County. According to the court of appeals' certification document filed on Wednesday, Kinnard Farms asked the DNR to approve a proposed expansion of its dairy. The company wanted to build a second location to house more than 3,000 dairy cows. Kinnard was required to submit a permit application. A permit was granted in August 2012.

A group of five petitioners sought a review through a petition for a contested case hearing. In that petition, they alleged the permit failed to require groundwater monitoring in order to assure compliance with the permit and also did not set a maximum number of animal units allowed.

Kinnard argued the DNR lacked authority to impose an animal-unit maximum, citing Wisconsin's Act 21.

The petitioners, along with environmental group Clean Wisconsin, asked a circuit court to review the DNR's decision. The court reversed the DNR's actions and ordered the groundwater monitoring and animal limits.

Kinnard Farms did not respond to DTN's request for comment on the case.

OTHER CASES

In addition to the Kinnard Farms case, Clean Wisconsin and the Pleasant Lake Management District sued the DNR over a similar case. This case includes a number of agriculture and food intervenors, including Wisconsin Manufacturers and Commerce, Dairy Business Association, Midwest Food Processors Association, Wisconsin Potato and Vegetable Growers Association, Wisconsin Cheese Makers Association, Wisconsin Farm Bureau Federation, Wisconsin Paper Council and the Wisconsin Corn Growers Association.

State statue creates three categories of wells according to the volume of the withdrawal -- those with a capacity of less than 100,000 gallons per day; high-capacity wells with more than 100,000 gallons withdraw; and additional high-capacity wells with a withdrawal of more than 2 million gallons. The state is required to complete an environmental review process on high-capacity wells in groundwater protection areas.

Clean Wisconsin challenged the state approval process after the state's attorney general ruled in 2016 that Act 21 precluded any type of environmental review outside of the types of wells specified in state law.

DNR AUTHORITY NEEDED

Sarah Greers, a Midwest Environmental Advocates attorney representing the plaintiffs in the Kinnard case, told DTN the DNR needs the authority to further protect groundwater.

"At the heart of those cases is the DNR's authority to impose conditions in CAFO water discharge permits," she said.

"The specific conditions at issue are groundwater monitoring at land spreading fields and a limit on animal numbers. But, ultimately, the ruling may have a broader impact on the scope of agency authority in other aspects of the CAFO program and in other environmental programs. We hope the Wisconsin Supreme Court will confirm the DNR's authority to impose permit conditions that are necessary to protect public health and the environment."

Evan Feinauer, a staff attorney for Clean Wisconsin, said in a statement the state supreme court will decide the future of water quality in the state.

"Both of these cases require the court to decide whether water will be protected for public benefit, or instead overused or polluted for the private gain for a handful of corporate farms," he said. "The stakes for our water and for all Wisconsinites could not be higher."

Clean Wisconsin has argued that, for more than 120 years, the state's courts have held that the state has the authority and duty to protect waters.

In 2011, the Wisconsin Supreme Court unanimously ruled the DNR must consider the effects on surface waters when permitting wells.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

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