Dairy Group Challenges Wisconsin Water Law Enforcement

A dairy trade group has filed a lawsuit against Wisconsin’s
Department of Natural Resources (DNR) alleging that the agency
both exceeded its authority and failed to follow required public
rulemaking processes when it set new water pollution control
regulations affecting dairy and animal feeding operations. Dairy
Bus. Ass’n v. Wis. Dep’t of Nat. Res., No. 2017CV001014 (Wis. Cir.
Ct., Brown Cty., filed July 31, 2017). The complaint involves recent
administrative rules and guidance issued by DNR related to feed
storage leachate runoff and calf hutches.

DNR is the state agency tasked with enforcement of the federal
Clean Water Act and is responsible for issuing state Pollutant
Discharge Elimination System permits (WPDES) to entities that
discharge pollutants into state waters. The complaint asserts that
the goal of the permit system is “parity” with the Clean Water Act
(CWA) and state regulations “shall comply with and not exceed
the requirements of the federal water pollution control act.”
Under the CWA, the plaintiffs assert, entities with concentrated
animal feeding operations (CAFO) must obtain permits only if
they have an actual discharge into U.S. navigable waters.
However, the plaintiffs claim that for years, DNR has exceeded its
authority under state law by requiring anyone with a CAFO to
“follow a complex and costly regulatory process” to obtain a
permit regardless of whether they have a discharge or whether
they intend to have one in the future.

The plaintiffs also claim that DNR failed to follow the public
rulemaking process required by state law when it created a new
rule governing feed storage leachate runoff and issued guidance
setting new rainfall runoff calculations and requiring retrofitting
of existing structures to bring them into compliance. The trade
group is seeking declaratory judgments and injunctive relief.

Issue 644