A Calumet County judge ruled Tuesday that the Wisconsin Department of Natural Resources (DNR) has the authority to require factory farms, also known as concentrated animal feeding operations (CAFOs), to obtain permits under the wastewater discharge program. handed down the verdict.
Judge Carrie Reed ruled against two CAFO lobbying groups that filed the lawsuit with the help of Wisconsin Manufacturers and Commerce, the state's largest corporate lobbying group. The two CAFO groups are themselves led by factory farmers who have been cited by the DNR for contaminating the state's waters with fertilizer runoff.
Venture Dairy Cooperative and the Wisconsin Dairy Alliance argued in the lawsuit that the state does not have the authority to seek permits under the DNR's Wisconsin Pollutant Discharge Elimination System (WPDES) program. The program requires any entity discharging pollutants into the state's waterways to obtain a permit.
Applications for a WPDES permit must be made within 90 days of becoming or expanding into a factory farm. Permits are valid for five years and must be renewed thereafter. Factory farms with more than 1,000 CAFOs (an “animal unit” equivalent to about 700 milking cows) will also be required to submit a plan to the DNR for how they will manage the fertilizer produced on their farms.
If a fertilizer spill occurs, the permit requires the owner to notify government agencies and take responsibility for cleaning up. Additionally, permits must be reapproved whenever business expansion is planned, and all permit applications are subject to a public comment period.
Fertilizer runoff can introduce toxic substances such as nitrates, E. coli, and phosphorus into the state's groundwater and surface waters, making water unsafe to drink and potentially killing fish.
2 years ago, Wisconsin Supreme Court control The DNR said it had the authority to use the WPDES permit to impose conditions on factory farms as a way to control environmental impacts. In recent years, WMC has filed multiple lawsuits seeking to weaken the DNR's authority and undermine its ability to regulate water pollution throughout the state.
The lawsuit cites two previous federal court decisions in 2005 and 2011 that require farms to follow a “time-consuming and expensive process” for obtaining permits that imposes “significant costs and regulatory burdens.” He argued that not doing so would be a violation of the law. U.S. Environmental Protection Agency's own permitting requirements for polluters.
At Tuesday's motion hearing, attorneys for both groups argued that the problem with the permit requirements is that they impose too much responsibility on farms.
“CAFO operators should not be required to obtain a permit from the DNR if they are not discharging, but perhaps equally, or perhaps more importantly, they are exposed to this liability if they do not have a permit.” It shouldn't be done,” attorney Scott Rosenau said. “So it's not just if they choose to revoke the permit. It's also if the CAFO operator happens to fail to renew the permit on time, or if the DNR drags their feet and actually renews the permit on time. The same is true if you don't issue one. What happens then is that the CAFO automatically pays a $25,000 penalty per day just because the permit was inadvertently revoked. It's not just a question of whether they can revoke the permit; the question is what liability they have if the permit lapses.”
But lawyers for the DNR and the conservation groups intervening in the case say the CAFO groups have not proven that farms are actually harmed by the permitting requirements and that the lawsuit is purely hypothetical. Because they didn't point anything out, they argued. Operates a CAFO that does not discharge waste into local ground or surface waters.
“I think it's important to note again that among the several theories that Rosenow has put forward regarding potential liability, the question of whether there are any non-exempt CAFOs is clearly missing.'' . Adam Voskuil is an attorney with Midwest Environmental Advocates and former president of the Wisconsin Farmers Union.
Reed ultimately found that state law and past case law give the DNR the authority to require permits.
After the ruling, conservation groups celebrated the decision as a clean water victory.
“We are pleased that the circuit court upheld long-standing water protections and dismissed this reckless lawsuit. The court correctly held that the state has clear legal authority to protect Wisconsin’s water resources. The claims asserted by Wisconsin Manufacturers & Commerce and its customers are that Wisconsin's rural residents and small family farmers are exposed to illegal fertilizer discharges and that their drinking water and Wisconsin rivers and lakes have been polluted.
Get the morning headlines delivered to your inbox
