DBA suing DNR, claims authority overrreach

By MaryBeth Matzek
MAA Editor

A Dairy Business Association lawsuit seeks to stop the Wisconsin Department of Natural Resources from overreaching its legal authority on key regulations.
The dairy group filed a lawsuit Tuesday against the DNR centering on how the agency implements new regulations without going through an approval process required by state law.
The lawsuit deals specifically with one example of this pattern of unlawful behavior: changes to how farmers manage rainwater that comes into contact with feed storage or calf hutch areas. Those changes, in which the DNR abruptly abandoned its own earlier directives, are causing costly fixes and still more uncertainty for farmers, said DBA President Mike North.

“We’re not looking for a free pass on regulations. We’re asking the DNR to follow the rules,” he said. “The agency clearly is overstepping its legal boundaries on this and other issues. We met with the DNR many times and were not getting anywhere. We turned to litigation as a last resort.”
For years, the DNR encouraged farmers to build what are called vegetative treatment areas (VTAs) where the water is safely and naturally treated to prevent runoff and protect water quality. In 2016, the agency suddenly did an about-face and began requiring farmers to collect all the water and add it to manure pits for spreading on fields.
The move circumvented Act 21, which requires agencies to follow a specific method of rulemaking based on public transparency and lawmaker oversight. The lawsuit seeks to stop DNR’s ongoing efforts to skirt the formal rulemaking process.
“Farmers are not above the law. The Department of Natural Resources shouldn’t be either,” North said.
The reversal on VTAs is creating confusion and causing farmers to spend millions of dollars on new storage lagoons and calf hutch improvements, he said. The change actually increases the risk of pollution, North said.
More than 100 Wisconsin dairy farms are affected by the DNR’s action.
“The DNR — unfairly, unnecessarily and illegally — is putting the livelihoods of dairy farm families at risk,” he said. “They need to be treated fairly and provided with predictability in order to run their businesses successfully.”
Filed in Brown County Circuit Court, the lawsuit also addresses a farm’s duty to apply for a permit. Despite a state law that binds the DNR to federal standards, the DNR has incorrectly adopted its own contradictory requirement. North said the hope is the lawsuit will result in a harmonization of state and federal law, while still providing for environmental oversight of farms.
“Dairy farmers are committed to doing the right thing for their cows, their communities and the environment,” he said. “Now, we need the DNR to do the right thing in regulating our farms.”
Moreover, North said, “This lawsuit is about more than VTAs and calf-hutches; it is about preventing the DNR from ignoring the law.”
North said the lawsuit affects more than farmers.
“Many businesses and others who deal with the DNR are frustrated as well,” he said. “All of us — the public — should be concerned when a state agency exceeds its authority. There is a tremendous amount at stake.”