Dairy group challenges DNR rules, wins case

Posted at 2:15 p.m. on October 19, 2017

The Brillion News

GREEN BAY – Dairy Business Association has secured a settlement in its lawsuit against the state Department of Natural Resources for legal overreach on regulations.

The settlement, reached Wednesday between the association and DNR, will bring immediate relief for dairy farmers facing uncertainty and costly changes, and will provide assurance that the DNR will create future rules only according to the law.

The dairy group prevailed on the central claims of the suit — that the DNR illegally changed rules for how farmers manage rainwater that comes into contact with feed storage and calf hutch areas.

More broadly, the settlement reaffirms the significance of Act 21, a 2011 state law that requires agencies to follow a specific method of rulemaking.

“More than anything, this is a victory for the rule of law,” said Mike North, president of the Dairy Business Association (DBA), a nonprofit organization that represents hundreds of dairy farmers and other related businesses across Wisconsin.

“The DNR or other state agencies can’t make up the rules as they go along. There is a process that must be followed, and that process promotes public participation, legislative oversight and transparency. That is good for everyone,” North said.

In reaching the deal, the DNR admitted that it overreached its legal authority, vowed to follow the proper rulemaking process and agreed to rescind the blanket change in standards for vegetative treatment areas and calf hutches. Instead, the agency will order changes on a case-by-case basis if a farm’s conditions warrant.

“Farmers’ investments will be protected by this victory,” North said. “Current practices will continue where they are working. A farm-specific approach will save farmers time and money. And we will have better and longer-lasting environmental outcomes.”

All environmental safeguards for water quality remain in place, North said, noting that existing standards found in state and federal law are not changed by this settlement.

“This lawsuit was never about rolling back regulations. It was about creating regulations according to a legally prescribed process,” North said.

The suit, filed July 31, was a first for the DBA and came only after years of rebuffed efforts to work with the DNR on its approach, North said. The VTA and calf hutch issues were the last straws.

For its part, the DBA agreed to drop a third claim related to a large farm’s duty to apply for a permit. The association had argued in the lawsuit that the DNR was contradicting a state law by exceeding federal standards that require a specific type of permit only if the farm discharges nutrients to a navigable surface water. The DNR presumes all large farms have unlawful discharges and, therefore, regulates them as concentrated animal feeding operations, or CAFOs, even if they’ve done nothing wrong.

North said the dairy group expected that its duty-to-apply claim would result in a harmonization of state and federal laws while still providing for environmental oversight of farms. But, he said, the association realized this claim would be the most challenging to prevail on in court even though there was sound basis.

“We are pleased we could help secure a more certain future for Wisconsin dairy farmers and send a strong message that state agencies must follow the rule of law when creating regulations,” North said.