Photo by Gregory Conniff for Wisconsin Examiner

Wisconsin farms applied about 16 million pounds more nitrogen than necessary to their fields in 2022, according to a recently released report from Clean Wisconsin and Alliance for the Great Lakes. 

The excess application of fertilizer poses serious risks to public health, raises costs for people who get their water from public utilities or private wells and increases costs for farmers, the report found. 

Throughout the report, the environmental groups included input from residents who have had their health and wallets affected by nitrate pollution. 

“I own a daycare center, and the mental toll of just staying in business because I did not cause the contamination of my well and yet am expected to solve the problem is exhausting…” Kewaunee County resident Lisa Cochart says in the report. “This could put me out of business. I work hard to provide my community with a service that assures that each child is receiving the best care and it can be shut down because of a nitrate test that I cannot control.”

The report makes a number of recommendations to better track the amount of nitrogen spread on Wisconsin’s fields and in Wisconsin’s water systems while better enforcing regulations meant to protect drinking water. But agricultural industry representatives have said the report places too much burden on farmers — even though agriculture produces up to 90% of the nitrogen in the state’s groundwater. 

“Wisconsin cannot afford to delay. The cost of inaction — both financial and human — is rising,” the report states. “A coordinated, science-based policy response is essential to reduce nitrate pollution at its source, protect public health and ecosystems, and ensure clean, safe drinking water for future generations.”

The report recommends tougher state standards for nitrates, improved enforcement of nutrient management plans on individual farms, creating a statewide registration system for manure haulers and requiring regular groundwater monitoring for factory farms. It also proposes collecting data on the cost of nitrogen contamination to public water systems, expanding the state’s existing private well compensation program and increasing the state’s nitrogen fertilizer tonnage fees.

While the report’s recommendations are aimed at a wide range of policy areas and farming is the major source of nitrogen contamination, dairy industry representatives have pushed back on its findings. Tim Trotter, CEO of the Dairy Business Association, told Wisconsin Public Radio farmers are already doing enough voluntarily to address the problem. 

“Our work with solutions-minded environmental groups and other stakeholders through a statewide clean water initiative has resulted in tailored changes to programs and policies that open up more opportunities for on-farm innovation that addresses this important issue,” Trotter said. “Reports like this one do little to bring practical, achievable solutions to water quality challenges, and can be counterproductive to progress.”

In the past, the Dairy Business Association has sued state regulators to weaken the state’s ability to regulate pollution sources such as runoff. 

The report states that the state Legislature and the courts have limited the authorities of state agencies, including the Department of Natural Resources and Department of Agriculture, Trade and Consumer Protection, preventing them from doing all that is necessary to manage the contamination. 

“Because Wisconsin administrative agencies have been severely limited in their ability to establish new regulations, they have relied heavily on voluntary incentives, such as cost-sharing and price supports to incentivize farmers to implement conservation measures,” the report states. “However, it is clear that these voluntary incentives alone aren’t enough to solve Wisconsin’s nitrate problems.”

The report also found that in applying more nitrogen fertilizer than necessary, Wisconsin’s farmers are spending $8-$11 million more each year than they need to — “dollars that could be saved with more precise application.” 

More than one-third of the state’s residents get their drinking water from private wells, which are especially susceptible to nitrate contamination. The report recommends expanding the well compensation program, but adds that is just a band-aid solution. 

The program also limits participation to residents making less than $60,000 per year and includes a number of requirements that further restrict who is eligible, even if their wells exceed the state’s nitrate standard of 10 milligrams per liter, according to the report.  

Instead, the report argues, the state needs to better work to keep nitrates out of the groundwater in the first place. 

“Well compensation programs, while vital for near-term relief, are ultimately a stopgap,” the report states. “They do not address the root cause of nitrate pollution. Without stronger upstream controls on nitrate pollution, more families will face the high cost and growing scarcity of access to safe drinking water.”

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Photo courtesy Grassroots Organizing Western Wisconsin (GROWW)

Over the past two years, I’ve had the privilege of standing with people in western Wisconsin who are fighting for the health and wellbeing of our communities. Hundreds of people have turned out at community meetings, rallies and local government meetings to voice their opposition to the proposed expansion of one of the largest factory farms in the region. 

In May, 100 people showed up to get organized in support of a legal challenge against Ridge Breeze Dairy’s permit to spread 80 million gallons of manure across western Wisconsin. Another 100 people showed up in the town of Maiden Rock to support the passage of an operations ordinance aimed at protecting local health and property values. Over 400 people registered for a DNR public hearing last year to show their opposition to the expansion.

These actions represent a growing unity and commitment to safeguarding clean water, clean air and the small farms that are threatened by Breeze’s expansion. That kind of unity drives action. It inspired the Maiden Rock town board’s unanimous vote to pass its operations ordinance in December 2024. And it’s inspired many more towns that have started studying and drafting ordinances of their own. 

For the last two years, Grassroots Organizing Western Wisconsin (GROWW) has played a key role in bringing together ordinary people and small farmers to pass local ordinances to protect our homes. People across the region are holding strong as corporate mega-dairies try to take over our agricultural landscape. 

But powerful special interests are trying to prevent local leaders from taking action to protect our communities. Venture Dairy, a lobbying group representing industrial dairy interests, strongly supports Ridge Breeze Dairy’s $35 million plan to expand from 1,700 to 6,500 cows and has attempted to intimidate towns and counties looking to protect their land, water and roads from the impacts of industrial agriculture. 

In 2020, for instance, leaders at Venture Dairy falsely told Polk County supervisors that they would be committing a felony if they voted for a moratorium on factory farm expansions. The Wisconsin Counties Association’s general counsel wrote a letter publicly refuting this ridiculous claim. More recently, officials in towns like Pepin, Gilman and Rock Elm have been subjected to similar intimidation tactics and disinformation regarding the regulation of industrial dairy farms.

The truth is that, thanks to the efforts of industry lobbyists whittling down and undermining state rules and enforcement, oversight of large-scale livestock operations in Wisconsin has been stretched thin. With more than 330 factory farms across Wisconsin, our communities have largely been left to fill the gap. 

But that’s still too much for Venture Dairy. They were recently behind a lawsuit challenging Wisconsin’s authority to protect water quality. If they had gotten their way, there would be no DNR regulations for hundreds of factory farms across the state. Last month, that lawsuit was rejected unanimously by an appeals court.

Venture Dairy’s founding members include Todd Tuls, former owner of the Emerald Sky Dairy in St Croix County. In Emerald, the town well – only half-a-mile away from the facility – has nitrate levels that have reached as high as six times the Safe Drinking Water standards. Emerald Sky had a 300,000-gallon manure spill in 2016 that went unreported for months before a neighbor notified the state. Emerald Sky has since been sold to Breeze Dairy Group, owners of Ridge Breeze Dairy in Pierce County. 

Despite these challenges, people in western Wisconsin are making real progress. In the face of industry opposition, we are successfully organizing to fight the corporate consolidation of the agriculture industry. Our community organizing resulted in the DNR recently removing 2,000 acres from Ridge Breeze’s manure spreading plan due to risks to groundwater and surface water that we identified. If not for our comments provided in the public hearing process, those acres very likely would have been rubber stamped. Last year, we identified hundreds of acres of land that had been listed on Ridge Breeze’s plan for manure spreading without permission from landowners. Due to our organizing and public pressure at a public hearing, we were able to get that land removed and require Ridge Breeze to submit affidavits attesting to the fact that they have permission to spread on the land listed on their plan. Unfortunately, these affidavits have not worked, and people have continued to come forward to remove their land. 

Recognizing the holes in state regulations, we organized to pass local ordinances like the operations ordinance in the town of Maiden Rock, which was passed last year and protects the town residents from the risks of factory farms. That organizing is now reverberating through the region, with people in western Wisconsin and beyond going to town board meetings with their neighbors to create the change they need to protect their homes. Just this week, 75 neighbors gathered in the town of Isabelle for a public hearing on an operations ordinance drafted by their town board. Those neighbors were united in their support for clean water, clean air and local control.

Regular people have decided the future of rural Wisconsin is worth fighting for, but the only way to change the path we’re on is to get organized. It’s time to join together with your neighbors who share your vision for your community and make a plan to bring change. The future of our rural communities depends on it.

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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.

A bear that had been wandering the Northwoods with its head stuck in a plastic jug has been freed.

The post A black bear ‘in a terrible predicament’ finds a happy ending appeared first on WPR.

The Raccoon River weaves past downtown Des Moines, Iowa, in June. One of the primary drinking water sources for the region, the river has high nitrate levels that have led to water restrictions for some 600,000 customers. (Photo by Cami Koons/Iowa Capital Dispatch)

For nearly a month, hundreds of thousands of Iowans have not been allowed to water their lawns — even though there’s no drought.

Local authorities previously asked the public to refrain from washing cars and filling pools. And some cities turned off splash pads in the height of summer heat.

While such measures are common during dry periods, there’s no shortage of water: Rather, the water in and around Des Moines contains too much nitrate, a natural component of soil and a byproduct of commercial fertilizer and livestock manure. Persistent rainfall has flushed nutrients out of fertilized fields into streams and rivers.

While the water bans are temporary, they’re the starkest sign yet of the state’s long-brewing struggle with high nitrate levels in streams and rivers that supply drinking water.

“It’s a big deal: the first time ever that lawn watering has been banned,” said Tami Madsen, executive director of Central Iowa Water Works, a regional water authority serving 600,000 people.

Federal law limits nitrate levels in drinking water because of its association with infant asphyxia, also known as blue baby syndrome. And a growing body of research has found links between nitrate consumption and cancer.

While Iowa’s problems are uniquely severe, nitrate levels are a rising concern in other regions, from California to the Chesapeake Bay. And climate change is expected to worsen the problem as more intense cycles of drought and severe storms increase farm runoff.

Iowa’s concentration of fertilized row crops and massive livestock confinements that produce tons of nitrogen-rich manure have caused concerns over increased nitrate levels for years. And the state’s unique underground system of farm drainage pipes quickly pumps nitrate and other nutrients into streams and rivers.

The water system serving the Des Moines metro area has invested heavily in nitrate filtration and removal equipment. The primary facility in Des Moines, one of the largest nitrate removal systems in the world, costs $16,000 per day to operate, Madsen said.

“I’m confident in our ability to continue to provide safe drinking water,” Madsen said. “It’s just going to be at what cost.”

More frequent and extreme storms because of climate change will heighten the problems nationwide, said Rebecca Logsdon Muenich, an associate professor of biological and agricultural engineering at the University of Arkansas.

Because nitrogen travels with water, nitrate levels are especially hard to control during times of severe weather.

Muenich said farm conservation practices such as establishing wetlands and landscape buffers can help keep nitrogen out of water supplies. But the growth of the livestock industry, availability of cheap crop fertilizer and lack of regulation over nitrogen application make nitrate levels hard to control.

“We’ve kind of put ourselves in a bind unless we start investing in better technologies or more conservation,” she said.

The role of agriculture

As hundreds of thousands of residents were being asked to conserve water last month, a group of 16 experts released a years-in-the-making report analyzing the quality of the Raccoon and Des Moines rivers, the main sources of drinking water for the Des Moines region.

The researchers found that central Iowa rivers have some of the nation’s highest nitrate levels, routinely exceeding the federal drinking water standard. While some pollutants are naturally occurring, the researchers concluded that most of the nitrogen in the two rivers comes from farmland.

Commissioned in 2023 by Polk County, the state’s most populous county and home to Des Moines, the report underscored the connection between industrial agriculture and water quality.

Larry Weber, a professor of civil and environmental engineering at the University of Iowa who worked on the report, said Iowa’s problem spreads to other areas: Iowa waterways export hundreds of millions of pounds of nitrogen per year, much of it flowing into the Mississippi River and eventually the Gulf of Mexico’s dead zone.

He said water restrictions may become more common as more cities confront high nitrate levels.

“This is happening more frequently and it’s going to continue to happen more frequently,” he said.

Weber said individual farmers aren’t necessarily to blame for the crisis. They’re doing their best to survive market demands and operate within federal farm policy. But he said the broader industry and the state could do more to invest in conservation methods to prevent pollution.

He noted that Iowa lawmakers in 2023 cut $500,000 for a water quality monitoring network across the state. While the Iowa Nutrient Research Center received a short-term grant to stay open, Weber said next year it will shut down 75 sensors that measure nitrate and other pollutants in state waters.

“The agricultural system doesn’t want this unfortunately difficult information to be made available,” he said.

A spokesperson for the Iowa Farm Bureau referred questions to the state agriculture department.

In a statement to Stateline, Agriculture Secretary Mike Naig, a Republican, said many Iowa groups are working on conservation and infrastructure projects to improve water quality.

“We’re not interested in stoking animosity between rural and urban neighbors,” the statement said. “Agriculture, conservation, recreation, urban and rural development, and business growth can and must co-exist in Iowa.”

In a lengthy social media post last month, Naig said nitrate levels were primarily driven by weather and stream flows. The secretary said advances in farming practices can help farmers apply fertilizer more efficiently and touted efforts such as new wetlands and structures that reduce stream erosion. But he said the fast-growing Des Moines area also needed to examine its investments in water treatment infrastructure to meet future needs.

“The blame game is unproductive,” he wrote.

On Tuesday, Naig’s department announced a $1.9 million water quality project upstream of Des Moines. That project will install landscape buffers and bioreactors to help reduce runoff of nitrate and other nutrients. The department is contributing $244,000 of that money.

Matt McCoy, chair of the Polk County Board of Supervisors, said that local government is trying to work with landowners and farmers to prevent water pollution. The county has spent millions on projects to seed cover crops and plant vegetative buffers between fields and waterways to prevent runoff of pollutants, including nitrogen.

“I don’t think we want to disparage agriculture and farming because it’s such a big part of who we are as a state,” McCoy said.

A former Democratic state lawmaker, McCoy said the recent water restrictions and daily news reports on nitrate levels in local rivers have elevated public awareness of water quality concerns.

“There are conversations that I know are happening now that were not happening prior to the restrictions,” he said.

Citizen action

The water restrictions in Iowa sparked an influx of interest from locals in the Izaak Walton League of America’s Nitrate Watch program, which provides volunteers with nitrate test kits and maps the results from across the country.

Heather Wilson, the league’s Midwest Save Our Streams coordinator, said the nonprofit environmental organization received more than 300 inquiries from Iowans during a single week in June. For comparison, the organization received about 500 inquiries from across the nation during the first six months of the year.

While the problems in the Des Moines area are severe, she said, volunteers are recording rising nitrate levels across the state. The project gives people who can often feel helpless an active way to contribute to the understanding of nitrate pollution.

“It’s really empowering to be able to put resources in people’s hands so that they can measure the waterways that they personally care about,” she said.

Retired science teacher Birgitta Meade has been testing nitrates around her rural northeast Iowa home for years both as classroom instruction and for Nitrate Watch.

“They’re higher than I have ever tested at any prior point,” she said. “I feel like I’m meticulously documenting the death of my home and nobody else gives a rip.”

Meade said she’s considering investing in a reverse osmosis system to remove nitrates from her home’s private well. Though her nitrate levels are below the federal drinking water standard, she pointed to the growing body of research linking cancer with consumption of nitrate — even at lower levels.

Meade acknowledged the pressures facing farmers, but she said she grows frustrated every time she drives past giant storage containers full of fertilizer and other farm chemicals.

“These are people who are choosing to poison their neighbors,” she said. “And this is just untenable.”

Small towns struggle

Climate change will only intensify nitrogen pollution, said Thomas Harter, a professor and water researcher at the University of California, Davis. Last year, he worked on research that found drought and heavy rains accelerate the speed of nitrogen absorption into groundwater.

In some parts of California’s Central Valley, nearly a third of drinking and irrigation wells exceed federal nitrogen standards.

“We are ever more productive on the grower side, and that means more fertilizer being used and more fertilizer being lost to groundwater and to streams,” Harter said.

That’s particularly challenging for drinking water systems serving small population bases.

“It gets really expensive for really small systems and it’s also a lot of maintenance,” he said.

That’s a reality currently facing Pratt, Kansas, a community of about 6,500 people, where some wells have recorded nitrate levels above the federal standard.

City Manager Regina Goff said nitrate levels are pushing the community’s pursuit of a new water treatment facility that’s expected to cost upward of $45 million. The city’s proposed 2025 budget totaled about $35.7 million.

Goff said the city is exploring financing options, including potential grants. But she said it’s frustrating for the town to spend so much to meet regulatory standards for safe drinking water, which she characterized as an “unfunded mandate.”

Currently, nearly a quarter of the city’s groundwater supply is unavailable because of high nitrate levels. But the city must notify residents of high nitrate levels even in wells that are not pumping.

“It causes a panic,” Goff said. “That’s been a hard pill for us to swallow as a city — that we have to alarm our population even though we know there’s no possibility of harm.”

Editor’s note: This story has been updated to correct the name of the Izaak Walton League of America.

Stateline reporter Kevin Hardy can be reached at khardy@stateline.org.

Stateline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence. Contact Editor Scott S. Greenberger for questions: info@stateline.org.

Photo by Gregory Conniff for Wisconsin Examiner

The U.S. Senate is currently working on its version of  the so-called “One Big Beautiful Bill Act”—a deeply misleading attempt to dismantle the Inflation Reduction Act (IRA) and derail America’s clean energy future.

Let’s be clear: This isn’t just political posturing. This bill, backed by fossil fuel interests and already passed in the House, would strip away the very tools Wisconsin families, businesses, farmers and communities are using to lower energy costs, create jobs and build a more resilient future. The damage to our state would be both immediate and long-term.

In Wisconsin alone, 82 clean energy projects are currently in the pipeline. These projects represent not just thousands of jobs and billions in investment — they’re the backbone of a 21st-century economy. From wind turbine manufacturing in Milwaukee’s Menomonee Valley to solar installations in rural communities, Wisconsinites are hard at work powering our future.

If the “Big, Broken Bill” becomes law, it threatens to cancel or delay many of these efforts. Clean energy tax credits would vanish. The Solar for All program and clean manufacturing investments would be eliminated. Tax incentives for electric vehicles, energy-efficient buildings, and sustainable agriculture would be repealed. These aren’t just policy tools — they’re direct investments in our people, places and potential. Many Wisconsin communities have used these credits to launch local projects that reduce taxpayer dollars through direct pay for solar, geothermal and clean vehicles.

And we can’t afford to go backward. Energy demand is skyrocketing — especially with the rapid expansion of AI and data centers. Experts warn electricity bills could jump by 70% in the next five years if we don’t act. Clean, renewable energy remains the cheapest and fastest option to deploy. Gutting these investments would lead to higher prices, more power interruptions and less energy reliability — leaving Wisconsin families and businesses to bear the cost.

Without these programs, household energy costs could rise by up to $400 a year. That’s a hidden tax hike on working families — piled on top of rising costs from tariffs and supply chain disruptions already straining our economy.

Even worse, the bill guts EPA pollution standards and allows major polluters to sidestep environmental compliance. It’s a taxpayer-funded giveaway to fossil fuel interests, trading our health, air and water for short-term corporate profits.

Let’s not forget Wisconsin’s farmers, who were just beginning to benefit from billions in IRA investments for conservation, renewable energy and carbon-smart agriculture. With grant contracts abruptly canceled, many family farms are left holding the bag, having made plans in good faith only to be blindsided.

We can do better. Wisconsin has the talent, tools and environmental leadership tradition to lead the clean energy economy. Clean energy already supports more than 71,000 jobs in our state. With the right investments, we could add 34,000 more and grow our economy by $21 billion by 2050.

We’re also home to over 350 clean energy supply chain companies. With support from IRA tax credits and the Wisconsin Economic Development Corporation (WEDC), we can expand local manufacturing of batteries, solar panels, wind components, EV systems and smart grid technology — positioning Wisconsin as a national clean energy hub.

This is the kind of forward-thinking, common-sense investment we need. It creates good jobs, lowers energy bills, strengthens supply chains and revitalizes communities.

The Senate still has time to act. Let’s urge our lawmakers, regardless of party, to reject this harmful bill and stand with the workers, innovators and families building a cleaner, stronger Wisconsin. Our policies should reflect our shared values of fairness, innovation, resilience and stewardship — not special treatment for polluters.

This isn’t about partisan politics. It’s about economic survival, energy independence and the future we want to leave our children.

It’s time to move forward, not backward, with a smarter stronger, and more sustainable Wisconsin.

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The seven members of the Wisconsin Supreme Court hear oral arguments. (Henry Redman/Wisconsin Examiner)

In a 5-2 ruling on Tuesday, the Wisconsin Supreme Court affirmed the Department of Natural Resources’ (DNR) authority to regulate polluters who produce hazardous substances such as PFAS through the state’s toxic spills law. 

The court’s ruling reverses the decisions of the circuit and appeals courts that could have threatened the DNR’s ability to force polluters to pay for the environmental damage they cause. For more than 40 years, the spills law has allowed the DNR to bring civil charges and enforce remediation measures against parties responsible for spills of “harmful substances.” 

The lawsuit was brought by an Oconomowoc dry cleaner and Wisconsin Manufacturers and Commerce (WMC), the state’s largest business lobby, after the owner of the dry cleaner, Leather Rich Inc., found PFAS on her property. 

In preparation to sell the business, Leather Rich had been participating in a voluntary DNR program to remediate contamination on its property in exchange for a certificate of liability protection from the department. During that process, the DNR determined that PFAS should be considered a “hazardous substance” under the spills law and communicated that on its website. 

If PFAS were present on a site, the DNR stated, participants in the voluntary program would only be eligible for partial liability protection. 

While conducting a site investigation through the program, Leather Rich determined three of four wells on the property exceeded Department of Health Services standards for PFAS concentration in surface or drinking water. The DNR requested that future reports from Leather Rich to the department include the amount of PFAS found on the property. Leather Rich responded by withdrawing from the program and filing suit. 

At the circuit and appeals courts, Leather Rich was successful, with judges at each level finding that the decision by the DNR to start considering PFAS a “hazardous substance” under the spills law constituted an “unpromulgated rule” and therefore was against the law. That interpretation would have required the DNR to undergo the complicated and often yearslong process of creating an administrative rule each time it determines that a substance is harmful to people or the environment.

SpillsLawDecision

In the majority opinion, authored by Justice Janet Protasiewicz and joined by the Court’s three other liberal leaning justices and conservative Justice Brian Hagedorn, the Court found that the DNR spent nearly 50 years administering the spills law responding “to about 1,000 spills each year, without promulgating rules listing substances, quantities, and concentrations that it deems ‘hazardous substances.’”

Protasiewicz wrote that when the Legislature wrote the spills law, it left the definition of “hazardous substance” intentionally open-ended but required a potentially harmful substance to meet certain criteria if it would apply under the law. 

“The definition of ‘hazardous substance’ is broad and open-ended in that it potentially applies to ‘any substance or combination of substances,’” Protasiewicz wrote. “But the definition is limited in that the substance or combination of substances must satisfy one of two fact-specific criteria.” 

She wrote that the law considers “a substance or combination of substances is ‘hazardous’ if,” its quantity, concentration or characteristics may cause or contribute to an increase in mortality or serious illness or may pose a potential hazard to human health or the environment

Leather Rich and WMC had argued that the Legislature’s failure to include chemical thresholds in the statutory text left while including the use of terms like “significantly,” “serious,” and “substantial,” meant that the law was ambiguous and therefore any DNR determinations of what counts as hazardous must be delineated in an administrative rule. They argued that under this interpretation of statute, spilling milk or beer on the ground could constitute a toxic spill. 

Protasiewicz wrote if that were the case, “then scores of Wisconsin statutes on a wide range of subjects would be called into doubt,” and that their hypotheticals are undermined by the text of the statute. 

“It is possible for an everyday substance like milk or beer to qualify as a ‘hazardous substance,’ but only if it first satisfies [the statute’s] fact specific criteria,” she wrote. “A mug of beer or a gallon of milk spilled into Lake Michigan may not ‘pose a substantial present or potential hazard to human health or the environment,’ but a 500-gallon tank of beer or milk discharged into a trout stream might well pose a substantial present hazard to the stream’s fish and environment.” 

The majority opinion also found that communications the DNR made on its website and in letters to Leather Rich counted as “guidance documents” not as rules.

Justice Rebecca Grassl Bradley, who once gave a speech to WMC in which she declared to the business lobby that “I am your public servant,” wrote in a dissent joined by Chief Justice Annette Ziegler that the majority’s interpretation of the spills law left the state vulnerable to a “tyrannical” government that could both create the rules and enforce them. 

“This case is about whether the People are entitled to know what the law requires of them before the government can subject them to the regulatory wringer,” she wrote. “The majority leaves the People at the mercy of unelected bureaucrats empowered not only to enforce the rules, but to make them. Americans have lived under this unconstitutional arrangement for decades, but now, the majority says, the bureaucrats can impose rules and penalties on the governed without advance notice, oversight, or deliberation. In doing so, the majority violates three first principles fundamental to preserving the rule of law — and liberty.” 

After the decision’s release, Democrats and environmental groups celebrated its findings as an important step to protecting Wisconsin’s residents from the harmful effects of pollution. 

“This is a historic victory for the people of Wisconsin and my administration’s fight against PFAS and other harmful contaminants that are affecting families and communities across our state,” Gov. Tony Evers said in a statement. “The Supreme Court’s decision today means that polluters will not have free rein to discharge harmful contaminants like PFAS into our land, water, and air without reporting it or taking responsibility for helping clean up those contaminants. It’s a great day for Wisconsinites and the work to protect and preserve our state’s valuable natural resources for future generations.”

But WMC said the Court’s interpretation leaves businesses guessing what substances count as hazardous under the law. 

“The DNR refuses to tell the regulated community which substances must be reported under the Spills Law, yet threatens severe penalties for getting it wrong,” Scott Manley, WMC’s Executive Vice President of Government Relations, said in a statement. “Businesses and homeowners are left to guess what’s hazardous, and if they’re wrong, they face crushing fines and endless, costly litigation. This ruling blesses a regulatory approach that is fundamentally unfair, unworkable, and impossible to comply with.”

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