Wisconsin Dairy Groups Sue DNR Over Wastewater Discharge Permit Requirement for CAFOs

By Danielle Kaeding

A law firm with ties to the state's largest business lobby is suing the Wisconsin Department of Natural Resources on behalf of dairy groups. The suit targets rules requiring factory farms to obtain permits aimed at keeping manure out of waterways.

In May, the WMC Litigation Center filed the lawsuit in Calumet County Circuit Court on behalf of the Wisconsin Dairy Alliance and Venture Dairy Cooperative. In Wisconsin, large farms known as concentrated animal feeding operations, or CAFOs, are required to get wastewater discharge permits, and must take certain steps to prevent manure from polluting water. Those include farms with 1,000 animal units or more, which is equal to 700 milking cows.

The lawsuit argues DNR rules unlawfully require the state's 336 CAFOs to obtain those permits. The dairy groups contend agency rules on CAFO discharges and agricultural stormwater runoff aren't consistent with state and federal law. They want a court to find the regulations can't be legally enforced.

"Federal law does not allow the EPA to do what the DNR is doing in this instance, and the state statutes say that the DNR has to follow federal law in this area," said Scott Rosenow, executive director of the WMC Litigation Center. "We're just trying to bring the DNR regulations into compliance with the state statutes and the federal law."

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. Rosenow argued the DNR can't exceed those federal requirements under state law. He also maintained an agency rule requiring permits for agricultural stormwater runoff conflicts with state and federal law that exempts such regulation.

A DNR spokesperson said the agency is unable to comment on pending litigation. However, Wisconsin Attorney General Josh Kaul denied the group's allegations in a response filed Friday. Attorneys for the DNR are asking the court to dismiss the case. 

Environmental groups note the DNR's authority to carry out environmental enforcement under the spills law is currently being challenged in separate cases brought by WMC and business owners.

Sara Walling, water and agriculture program director at Clean Wisconsin, said the state's CAFO permitting program provides essential oversight of large farms. She said those farms are generating enough manure to warrant permits that regulate their operations.

"If the lawsuit were to move forward successfully, it would really undermine our ability in the state to protect our public drinking water ... against the pollutants that are inherent to the manure supply," Walling said.

Rosenow argued the rules essentially require permits for discharges even if they’re not happening. Even so, environmental groups argue some CAFO owners that are responsible for large manure spills are tied to groups bringing the lawsuit.