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Court: DNR can impose farm conditions, consider well impact

The state Supreme Court says state regulators can impose operating conditions on factory farms...
The state Supreme Court says state regulators can impose operating conditions on factory farms and consider high-capacity wells’ cumulative environmental impacts when weighing whether to grant permits.(KGNS)
Published: Jul. 8, 2021 at 8:37 AM CDT
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MADISON, Wis. (AP/WSAW) - The state Supreme Court says state regulators can impose operating conditions on factory farms and consider high-capacity wells’ cumulative environmental impacts when weighing whether to grant permits.

The rulings Thursday mark a major win for conservationists and clarify that the Department of Natural Resources has broad authority to protect Wisconsin’s waters. Environmental groups had sued the DNR seeking stricter regulation of water pollution from factory farms and large-scale water withdrawals from high-capacity wells.

The case started in Kewaunee County in 2012 after a farm requested that the DNR give them a water pollution permit to add more than 3,000 cows. An administrative law judge ordered the DNR to impose conditions on the permit requiring the farm to monitor groundwater for contamination from manure and capping the number of animals.

The DNR refused to enforce the conditions, citing an opinion from then-Republican Attorney General Brad Schimel. He pointed to a state law Republicans authored in 2011 known as Act 21 that allows state agencies to take actions only if they’re specifically allowed in statute or administrative rule. The judges’ conditions weren’t laid out in statute, preventing the DNR from enforcing them, the agency argued.

Clean Wisconsin and Midwest Environmental Advocates sued in 2015 to force the department to impose the conditions. A state appeals courts sent the case directly to the Supreme Court.

Republican legislators joined the lawsuit, siding with the farm, saying if the DNR wanted to impose the conditions it would have to write them up as new administrative rules and try to win legislative approval.

Clean Wisconsin and the Pleasant Lake Management District filed a separate lawsuit in 2016 alleging the DNR should have considered the widespread impact of eight high-capacity wells before granting permits for the projects. Environmentalists contend that high-capacity wells are draining lakes and depleting groundwater levels across central Wisconsin.

Again, the DNR pointed to Act 21, saying nothing in state law or rule explicitly permits them to consider cumulative impacts when granting high-capacity well permits. The department approved all eight permits in question without any conditions. Republican legislators and a host of industry groups, including Wisconsin Manufacturers and Commerce, the state’s largest business group, joined the case.

The court ruled 4-2 on Thursday that the DNR can indeed consider cumulative impacts. Justice Rebecca Dallet, writing for the majority, mirrored Karofsky’s opinion in the farm case, saying the agency has broad authority under state law to protect state waters and that statutes explicitly state the DNR “shall formulate plans and programs” to that end.

People in northcentral Wisconsin, like Brian Hamm and Rhonda Carroll, fought to prevent a similar situation in their town of Saratoga. They both said they got goosebumps when they heard the news and were “wildly over the moon about it.” They were able to prevent the Central Sands Dairy from expanding and putting in a high capacity well, however, other wells were approved nearby.

“We’re not raining on anybody’s parade as a business,” Hamm noted, “but you have to run your business with the knowledge that you’ve got neighbors and let’s all try to work together to get a happy medium and not have it be as lopsided as it’s been.”

“Great news,” Carl Sinderbrand, an attorney for the Pleasant Lake Management Lake District, said of the decision. “You continue to have an opportunity to go to DNR and say ‘you have a duty to protect my lake. You need to take action here.’”

A DNR spokesperson said they are reviewing the decisions to determine how to proceed with existing wells, but noted “the rulings are significant and good for Wisconsin’s waters.”

Conservatives hold a 4-3 majority on the court but Chief Justice Annette Ziegler joined with liberals Karofsky, Dallet and Ann Walsh Bradley in a surprise move to form the majority. Conservative Justice Brian Hagedorn didn’t participate in the decisions.

The two remaining conservatives, Patience Roggensack and Rebecca Bradley, wrote in dissents that the majority opinion guts Act 21 and ignores the will of legislators who enacted it. Rebecca Bradley called the wells decision “a striking affront to the will of the people.”

Aides for Republican legislative leaders didn’t immediately respond to messages seeking comment Thursday. A Wisconsin Manufacturers and Commerce spokesman declined to comment.

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