A new lawsuit filed by pro-agriculture groups in Wisconsin seeks to halt oversight of large-scale livestock operations in the state. The groups say the Department of Natural Resources “unlawfully requires” such facilities to receive a pollution discharge permit from the state. If successful, the lawsuit would eliminate one of the primary regulations for Concentrated Animal Feeding Operations (CAFOs).

The issue is of particular importance for the St. Croix River and its tributaries because of an existing dairy CAFO in the Willow River watershed that has caused significant pollution, a proposal for a hog CAFO near the Trade River that would produce millions of gallons of manure each year, and the expectation that more proposals are in the works.

All such operations currently must receive a Wisconsin Pollution Discharge Elimination System permit, which includes the requirement for an approved Nutrient Management Plan. This plan dictates when and where manure can be spread as fertilizer on farm fields. Without the WPDES permit process, the public would learn very little about proposed operations and how they plan to prevent manure from running off into nearby lakes and streams, as well as underground aquifers.

But the Wisconsin Dairy Alliance and Venture Dairy Cooperative said in a late May filing that the permit can’t be required if an operation does not directly discharge pollutants into public waters.

“This rule exceeds the Department’s statutory authority, conflicts with state law, and unlawfully
exceeds the requirements of the federal Clean Water Act,” the lawsuit reads.

Essentially, because manure can flow into nearby waters from farm fields where it is spread, but not usually as a direct discharge from the farm itself, the industry groups say the DNR has no authority to require a permit for such indirect pollution.

The complaint goes on to say that applying for a WPDES permit is time consuming and costly, and thus an unfair burden to put on livestock operations.

‘Reckless’

Advocates for clean water say it’s a major threat to one of the few tools the DNR has to protect Wisconsin’s waters.

“This reckless lawsuit seeks to critically weaken the state’s power to regulate livestock operations that generate massive amounts of liquid manure,” said Peg Sheaffer, Communications Director for Midwest Environmental Advocates (MEA). “It’s a threat to public health and to all sectors of our economy—including tourism and agriculture—that rely on clean water.”

Earlier this month, the DNR responded to the lawsuit with a filing that disagreed with the CAFO groups on nearly every point.

“Plaintiffs fail to state a claim on which relief may be granted because the complaint does not show that Wis. Admin. Code NR § 243.11(3)(a)–(b), or the Department’s definition of “agricultural stormwater discharge” in Wis. Admin. Code NR § 243.03(2)(a)–(b), or the actual or threatened application of any of those provisions actually ‘interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the plaintiff,’” attorney general Josh Kaul wrote.

Polluting plaintiffs

The two groups pressing the lawsuit are vocal proponents of CAFOs. They are also led by CAFO owners, with several members of their boards also operating large-scale dairy operations. The owner of Emerald Sky Dairy, the largest CAFO in the St. Croix River basin and a source of repeated pollution of surface and ground water, was a founder of Venture Dairy Cooperative, though he is no longer listed as a member.

But the Wisconsin Examiner assessed the track record of current board members, and found that several were responsible for CAFOs which had significantly polluted their surroundings. Four of the five known board members’ operations have been cited by the DNR since 2006 for manure spills, totaling more than 26,000 gallons spilled.

The groups are being represented by the Wisconsin Manufacturing & Commerce Litigation Center. That group previously sued to overturn the rural Polk County town of Laketown’s ordinance that regulated how CAFOs can operate in the jurisdiction.

The latest lawsuit was filed in Calumet County Circuit Court. No timeline for hearings has been announced yet.

Note: Emerald Sky Dairy has also recently applied for a permit to expand its operation significantly. Stay tuned to St. Croix 360 for more information.

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