Cows at a Dunn County dairy farm. (Photo by Henry Redman/Wisconsin Examiner)

A Wisconsin Court of Appeals on Wednesday ruled that the state Department of Natural Resources has the authority to require that factory farms obtain water pollution permits, affirming a previous Calumet County court decision. 

Two groups representing Wisconsin’s factory farms, known as Concentrated Animal Feeding Operations, filed the lawsuit in 2023, arguing that the state did not have the authority to require permits under the DNR’s Wisconsin Pollutant Discharge Elimination System (WPDES) program. The program requires any entity that discharges pollution into the state’s waterways to obtain a permit. 

The lobbying groups, Venture Dairy Cooperative and the Wisconsin Dairy Alliance, are themselves led by factory farm operators who have been cited by the DNR for contaminating the state’s water through manure spills. Wisconsin Manufacturers and Commerce, the state’s largest business lobby, has also been involved in the lawsuit. 

State law requires an application for a WPDES permit must be made within 90 days of becoming a factory farm or expanding. The permits last for five years before they must be renewed. CAFOs — factory farms with more than 1,000 “animal units,” which is equivalent to about 700 milking cows — are also required to submit plans to the DNR for how they intend to manage the manure created on the farm. 

Over the last two decades, the number of CAFOs operating in Wisconsin has more than doubled, creating an increasing amount of manure that sits in lagoons, gets spread onto fields and potentially runs off into local waterways. 

If a manure spill occurs, the permit requires the owner to notify the agency and is responsible for the cleanup. The permits also need to be reapproved whenever an operation is planning to expand and every permit application is subject to a public comment period. 

A manure spill can cause harmful substances such as nitrates, E. coli and phosphorus to enter the state’s ground and surface waters — potentially making drinking water dangerous to consume and causing fish to die. 

Four years ago, the Wisconsin Supreme Court ruled that the DNR had the authority to use the WPDES permits to impose conditions on factory farms as a way to control their environmental effects. In recent years, WMC has filed several lawsuits seeking to weaken the DNR’s authority and undermine its ability to regulate water pollution across the state. 

The lawsuit argued that having to comply with the “time-consuming, costly process” of obtaining a permit that imposes “substantial costs and regulatory burdens” on the farms, is against the law because of two previous federal court decisions in 2005 and 2011 about the U.S. Environmental Protection Agency’s own permit requirements for polluters.

On Wednesday, the District II Court of Appeals, which covers 12 counties in southeastern Wisconsin, found that the DNR does have the authority to create the rules the dairy groups challenged. 

“The challenged rules do not exceed the DNR’s statutory authority and do not conflict with state law,” the three judge panel, controlled by a conservative majority, wrote.

After the decision, advocates for the environment and smaller farms said it would help the state protect water quality. 

“This decision is a win for every rural community that depends on clean water,” Wisconsin Farmers Union President Darin Von Ruden said in a statement. “Family farmers understand that stewardship of the land and water is key to long-term success. Ensuring that large livestock operations follow commonsense permitting rules protects our shared resources and the future of farming in Wisconsin.”

“These large operations can produce as much waste as a small city, and the state must be able to monitor and control how, where, and in what quantities manure is stored and spread on the landscape,” said Clean Wisconsin attorney Evan Feinauer. “That’s why for nearly 40 years, the DNR has required large CAFOs to have permits to limit this dangerous pollution. Allowing large dairies to sidestep oversight would have been catastrophic for water protection in our state.”

the Von Ruden farm sits on a hill overlooking Vernon County. (Henry Redman | Wisconsin Examiner)

State Sen. Brad Pfaff (D-Onalaska) and Rep. Jenna Jacobson joined Wisconsin Farmers Union President Darin Von Ruden on his Vernon County farm Thursday to criticize the economic and agricultural policies of President Donald Trump as bad for Wisconsin’s small and medium farms. 

The event at the farm in Westby came as Wisconsin Republicans have ignored or disputed the cumulative effect on farmers of tariffs on foreign imports, cuts to programs at the U.S. Department of Agriculture and an immigration policy that has scared away some farm laborers who are afraid to show up to work. 

“The tariffs coming out of Washington D.C. are hurting our farmers across Wisconsin and across the country, and you don’t have to just take this from me,” Pfaff said. “All you have to do is look at the economic indicators, those troubling signs that are coming across from Washington, D.C. Job growth is stagnating, prices are rising, and the agriculture sector is taking a hit. Sadly, my Republican colleagues in Madison seem to be turning a blind eye to all of these concerns.”

Sen. Howard Marklein (R-Spring Green), whom Jacobson is challenging in next year’s midterm elections, recently said that “farmers aren’t concerned” about the potential damage of Trump’s policies. At a telephone town hall earlier this week, U.S. Rep. Tom Tiffany said that through actions such as raising the estate tax exemption for farms and the establishment of trade agreements with countries around the world, Wisconsin farmers will be able to benefit from “free markets.” 

But Von Ruden told the Wisconsin Examiner he doesn’t see how Wisconsin’s farmers can benefit when the federal government is cutting programs that directly help them find markets for their products while tariffs only make it harder to export. Trump and Republicans have made massive cuts to USDA programs that help schools and food banks buy food from local farmers. The recently enacted Republican reconciliation law makes large cuts to the Supplemental Nutrition Assistance Program, also known as food stamps, which low-income residents have been able to use to buy food from producers at local farmer’s markets. 

“That’s hundreds of millions of dollars that farmers are going to lose because the government’s not going to be purchasing [food] to take care of the most needy people in this country,” Von Ruden said. “The other thing is, because we’ve allowed so many loopholes in the USDA, fewer people are getting bigger dollars from the government or insurance subsidies and things like that. So that’s taking money away from the small producers, because we don’t have the capabilities to hire an attorney to make sure that we get that $5 or $6 million check from Uncle Sam. Our members and myself, I would much rather get my income from the marketplace versus depending on a government check.”

Von Ruden’s kids are the fourth generation to work on his family farm. He said that with Trump’s tariffs, his costs are going up. Canadian fertilizer is more expensive. The John Deere tractor he uses will soon be unaffordable. 

“We need to make sure that we’re growing agriculture, not decreasing it. Looking at how tariffs are going to affect this farm, we’re going to see the trickle down effect from that in the commodity markets,” Von Ruden said. That trickle down effect is the biggest concern for farmers, he added. 

“The president has said that he’s going to make sure that farmers are taken care of,” Von Ruden said. “Tariffs aren’t going to do that. So let’s stop all the rhetoric.”

Jacobson pointed to a number of proposals in the Wisconsin Legislature meant to help farmers respond to Trump’s trade wars that Republicans have blocked. 

“Wisconsin Republicans had three chances to support our farmers, and three times they voted no,” she said. “Howard Marklein and Republicans in both chambers have failed to support our family farmers, failed to invest in our agricultural industry and made it harder for those in need to buy food. This is completely unacceptable.” 

The driftless region of western Wisconsin is set to become a major target for Democrats in next year’s midterm elections as the effects of Trump administration and Republican policies hit the purple swing region. In addition to Jacobson’s challenge of Marklein, Democrats are targeting U.S. Rep. Derrick Van Orden’s 3rd Congressional District seat.