Advocates for Wisconsin's largest dairies want less regulation for CAFOs. Environmental groups call it a 'really big threat.'

MADISON - Two lobbying groups that represent Wisconsin's largest dairy farms are seeking to essentially end regulations that preemptively combat water pollution stemming from commercial farms, with a new lawsuit filed earlier this summer.

In the lawsuit against the Department of Natural Resources, the Wisconsin Dairy Alliance and Venture Dairy Cooperative are arguing that the agency doesn't have the authority to require large farm operations to obtain water discharge permits before pollution occurs. The groups are being represented by Wisconsin Manufacturers & Commerce, the state's largest business lobby.

The discharge permits are among some of the only regulatory guides in Wisconsin for concentrated animal feeding operations, or CAFOs — farms that have 1,000 or more animal units. The permits require farms have plans on how to store and get rid of the massive amounts of manure produced by the animals.

In the complaint, the dairy groups argued that obtaining a Wisconsin Pollutant Discharge Elimination System permit is a time-consuming and costly burden for farms. Farms must apply for the permit a year prior to becoming a CAFO, detailing in the application their manure storage and wastewater treatment facilities, types of outdoor animal lots, feed storage areas and runoff control systems.

The process also includes a hearing in which members of the public can comment.

The complaint points to two federal court rulings that found that under the Clean Water Act, CAFOs could not be required by the U.S. Environmental Protection Agency to get a permit before pollution happens.

Wisconsin Manufacturers & Commerce filed the suit in May in Calumet County. Earlier this month, the DNR submitted a response denying the allegations in the complaint and asking for it to be dismissed.

Environmental groups: Suit is a 'really big' threat to water resources

Kim Bremmer, executive director of Venture Dairy Cooperative, said discharging pollutants into the water will still be illegal if the lawsuit succeeds and that many farms may still choose to be permitted, even if it's no longer required, to avoid the penalties associated with a spill that happens without a permit. The Wisconsin Dairy Alliance and Wisconsin Manufacturers & Commerce did not respond to a request for comment.

"The warnings from some anti-farming activists that the sky will fall if we succeed in our legal challenge are completely without merit," Bremmer said.

The suit aims to erase the presumption that CAFOs are guilty of discharging pollutants and get rid of economic burdens to farmers "at no cost to the environment," she said.

Environmental groups disagree.

Sara Walling, water and agriculture program director at the nonprofit Clean Wisconsin, said the work that goes into applying for the permit is the cost of doing business.

"We see this lawsuit as a really big threat to our ability to protect (the state's) water resources," Walling said. "The sheer volume of manure that is produced and stored really necessitates the permit process to ensure their waste is being properly managed."

The permit is more than a piece of paper, she said; it's a chance for farms to assure their neighbors that they're in line with state requirements to protect nearby waters.

The suit is out of step with the state's history of caring about water quality issues, said Tony Wilkin Gibart, executive director of Midwest Environmental Advocates, an environmental law firm. Wisconsin law has always gone further than federal standards, he said, which set the bare minimum.

The complaint effectively asserts that CAFOs should be allowed to regulate themselves, Wilkin Gibart said, and "the track record shows they can't be trusted."

Bill Davis, a legal analyst for the River Alliance of Wisconsin said more and more issues are being seen with nutrient pollution, which isn't sustainable.

"It is always cheaper to prevent pollution than to clean it up. This lawsuit is asking to undo a system that has served the state for more than 40 years," Davis said.

"Not regulating CAFOs would lead to greater pollution, with that cost now borne by the public rather than CAFO owners. That's not right or fair. Permits are not something that responsible farmers should be worried about."

WMC part of other lawsuits seeking to limit DNR authority

The CAFO lawsuit isn't the first that WMC has been involved in against the DNR.

It's currently with three other lawsuits against the DNR, targeting the agency's ability to require businesses to clean up contamination or test for contamination.

Last year, in a separate case in Jefferson County, a judge said the DNR could continue to sample for PFAS for informational purposes, but enforcement couldn't be taken against polluters or property owners without PFAS standards in place. He also ruled that any sampling results should be considered public record, and therefore subject to records requests.

The case dismissed this week by the appeals court, because standards went into effect for PFAS last summer, therefore allowing the DNR to more widely sample for the compounds.

In another case, a Waukesha County judge ruled in favor of WMC and an Oconomowoc dry cleaning business, determining that the DNR could not require the cleanup of toxic "forever chemicals" because they were not specifically listed as hazardous substances and did not have specific numerical levels to trigger a cleanup. The decision was appealed and is currently awaiting judicial assignment.

The ruling negates that authority to require clean up of a spill by the entity that caused the pollution unless the state has already engaged in rulemaking for the contaminant.

Earlier this summer, in a third case filed by WMC, the organization is representing business owners who told to clean up petroleum contamination on their property before they could sell. The owners argued that they shouldn't be required to clean up the contamination because they did not cause it.

That case is waiting to be taken up by a judge in Jefferson County, where it was filed.

WMC, Venture Dairy and the Wisconsin Dairy Alliance also were involved in a threatening letter sent in 2020 to Polk County Board members who were considering a CAFO moratorium for the county. The groups said the supervisors could face charges of misconduct in office if they passed the moratorium, resulting in a number of members backing down from passing the ordinance.

Laura Schulte can be reached at leschulte@jrn.com and on Twitter at @SchulteLaura.

This article originally appeared on Milwaukee Journal Sentinel: Wisconsin dairy groups sue DNR over CAFO regulation