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State environmental regulators can require large livestock farms to obtain permits that seek to prevent manure spills and protect state waters, a state appeals court has ruled. 

Last year, a Calumet County judge ruled in favor of the Wisconsin Department of Natural Resources in a case challenging the agency’s authority to require permits for concentrated animal feeding operations or CAFOs. Those farms have at least 1,000 animal units or the equivalent of 700 milking cows.

In 2023, the WMC Litigation Center sued the DNR on behalf of the Wisconsin Dairy Alliance and Venture Dairy Cooperative. They argued that agency rules that require CAFO permits and regulate stormwater runoff from farms can’t be legally enforced because they’re inconsistent with state and federal law.

In a decision Wednesday, a three-judge panel upheld the lower court’s decision.

“Because we conclude the two challenged rules do not conflict with state statutes and do not exceed the DNR’s statutory authority, we affirm the circuit court’s order granting summary judgment in favor of the DNR,” the panel wrote.

A DNR spokesperson said it’s reviewing the decision and unable to comment further at this time.

An attorney for farm groups had argued the DNR can’t go beyond federal requirements under state law, adding that state and federal laws exempt farms from regulation of their stormwater runoff.

Federal appeals court rulings in 2005 and 2011 found the Clean Water Act doesn’t allow the Environmental Protection Agency to require CAFOs to get wastewater discharge permits until they actually release waste into waterways. The three-judge panel noted state permitting programs may impose more stringent requirements than the EPA’s permitting program.

In a joint statement, Wisconsin Dairy Alliance and Venture Dairy Cooperative said the decision is disappointing for Wisconsin’s ag community.

“We believe that there is no place for bad actors and that polluters should face penalties, but this case had nothing to do with weakening environmental laws. Our sole mission in challenging the DNR’s authority was to ensure that Wisconsin farmers are held to standards consistent with federal law,” the groups wrote.

“We continue to believe that a ‘presumption of guilt’ runs contrary to the very fundamentals of the American justice system. We are disappointed with today’s outcome and will continue to fight for Wisconsin farmers regardless of the size of their farm,” the groups continued.

The ruling affects the state’s 344 CAFOs. Under permits, large farms must take steps to prevent manure spills and runoff that include developing response plans, nutrient management plans and restricting manure spreading when there’s high risk of runoff from storms.

Midwest Environmental Advocates is among environmental groups that intervened in the case. They said the legal challenge could have severely limited the DNR’s ability to protect state waters from manure pollution, noting CAFOs can house thousands of cows that produce more waste than small cities.

Adam Voskuil, an MEA attorney, said the ruling affirms environmental regulations.

“We’re continuing to protect water resources in the state, and (it’s) a prevention of rolling back really important, necessary regulations,” Voskuil said.

Without them, Voskuil said the DNR would be responsible for proving whether each individual CAFO has discharged pollutants to surface water or groundwater. He said it’s likely the agency wouldn’t have the resources to do that work, meaning many farms wouldn’t be permitted or taking required steps to prevent pollution.

Darin Von Ruden, president of the Wisconsin Farmers Union, said there has to be oversight of any industry.

“There needs to be some kind of authority that can call out the bad actors and make sure our water supply is safe,” Von Ruden said.

The Wisconsin Department of Justice has been defending DNR in the case. Wisconsin Attorney General Josh Kaul has previously said the state should be strengthening protections for state waterways, not weakening them.

Manure has been linked to nitrate contamination of private wells. Nitrate contamination can lead to blue-baby syndrome, thyroid disease and colon cancer. Around 90 percent of nitrate in groundwater can be traced back to agriculture.

The lawsuit is not the first to challenge DNR’s authority to require permits for CAFOs. In 2017, the Dairy Business Association sued the agency in part over its permit requirements, dropping that claim as part of a settlement with the DNR. Large farms have also challenged the agency’s authority to impose permit conditions on their operations. In 2021, the Wisconsin Supreme Court ruled the DNR had authority to impose permit requirements on large farms to protect water quality.

This story was originally published by WPR.

Wisconsin DNR can require CAFO permits to protect water, appeals court rules is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

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