Dairy Farmers File Appeal in Permitting Case Against Wisconsin DNR

WAUKESHA – Represented by the WMC Litigation Center, Wisconsin Dairy Alliance and Venture Dairy Cooperative filed an appeal on Friday in their case against the Wisconsin Department of Natural Resources (DNR). The dairy groups argue that DNR has exceeded its authority by requiring hundreds of Wisconsin farmers to obtain a Wisconsin Pollutant Discharge Elimination System (WPDES) permit.

This requirement for a discharge permit – which is separate from the ban on unauthorized discharges – creates a “failure to apply” liability for farmers, resulting in far greater compliance costs and time associated with this additional layer of burdensome regulation.

“Larger-scale farms in Wisconsin are already some of the most regulated entities in our state and nationally, and this permit requirement simply creates additional burdens on our agricultural community,” said WMC Litigation Center Executive Director Scott Rosenow. “Further, DNR has exceeded its authority, in violation of Wisconsin’s uniformity requirement, by being inconsistent with federal law.”

The plaintiffs note that concentrated animal feeding operations – or CAFOs – are some of the most responsible and environmentally sound farms in Wisconsin. Due to size and scale, they are the first to adopt innovative technology such as GPS-assisted nutrient application. CAFO farm families have helped usher in an era of modern farming that can reduce negative environmental impacts while helping to keep families farming on the land for generations to come by providing a living for more family members.

“This unlawful permit requirement assumes that 327 farmers in our state affected by the regulation are automatic polluters, and that is categorically false,” added Venture Dairy Cooperative Executive Director Kim Bremmer. “There is no question that bad actors should face penalties, and this lawsuit does absolutely nothing to change that. It’s time that we look at meaningful solutions for environmental challenges rather than continually focusing on senseless regulations for a small group of farmers.”

If successful, the lawsuit would eliminate the requirement that CAFO farm families obtain a WPDES permit. Federal appeals courts have also agreed twice with this sentiment in two cases presenting nearly identical arguments. Farms would still be prohibited from discharging pollutants without a permit, however. An unauthorized discharge would result in stiff penalties, and important manure rules and regulations would still remain in place.

“Wisconsin farmers want and need access to clean water, just like everyone else in our local communities,” said Wisconsin Dairy Alliance President Cindy Leitner. “This lawsuit aims to reduce the cost and burden of obtaining an illegally required permit, while ensuring we can all continue to be proper stewards of the land.”

The appeal filed by the WMC Litigation Center challenges two DNR rules: one relating to the requirement to obtain a WPDES permit and another that requires the permit for storm water runoff to be exempt from liability, even though federal law exempts such runoff without a permit. The appeal argues both DNR rules violate Wisconsin’s uniformity statute because they exceed federal law.