Concentrated animal feeding operation

A farm lobby lawsuit claims that concentrated animal feeding operations shouldn't undergo state permitting scrutiny until after the polluted water.

Kate Golden / Wisconsin Center for Investigative Journalism

A dairy industry group is suing to end Wisconsin’s requirement that large animal feedlots producing hundreds of millions of gallons of manure undergo state scrutiny before they begin operating.

If the Wisconsin Dairy Business Association prevails, the operations would no longer need state approval for their methods of storing and disposing of the manure unless it was demonstrated they had polluted lakes, streams or drinking water wells.

An association spokesman called the state rules illegal and costly. But conservationists said the industry changes would seriously disrupt a regulatory system that was already faltering.

“Moving to a sort of ‘Catch me if you can’ regulatory scheme like this puts more water resources at risk and additional burden on local governments,” said Sarah Geers, a staff attorney for Midwest Environmental Advocates.

Counties would assume oversight of the big concentrated animal feeding operations, or CAFOs, but many of them are even more thinly staffed than the state Department of Natural Resources, the agency that now has primary responsibility.

“This would just upset what is already a pretty strained system and just stress it more,” said Jim VandenBrook, executive director of Wisconsin Land and Water, which represents county soil and water conservation personnel.

With local ordinances that are less demanding than state rules, counties would be left alone to ensure that design and construction of CAFO manure storage systems were adequate, VandenBrook said.

“There is essentially no funding for monitoring of the systems’ function once installed,” VandenBrook said. “The biggest failures after installation are usually failed (or) burst pumps which can release significant amounts of manure.”

The lawsuit would also eliminate the state rule requiring that CAFOs file nutrient management plans showing how they will dispose of manure on farm fields without putting water at risk.

The lawsuit alleges the longstanding state permitting rules became illegal in 2011 when a law was enacted placing stricter limits on the power of agencies like the DNR to interpret statutes.

“In order to satisfy the DNR’s permitting requirements, CAFOs have had to hire professional engineers to design manure and wastewater management plans and facilities,” says the lawsuit filed in Brown County Circuit Court. “The implementation of these plans is expensive, time-consuming and burdensome.”

Law limits DNR oversight

The 2011 law gave elected officials more control of administrative rules agencies write to spell out how laws are to be implemented.

The law also invalidates rules with provisions not approved by elected officials or specifically authorized in statutes, the association’s lawsuit argues.

That law, known as 2011 Act 21, was cited by top state Republicans last year to curtail DNR authority to limit ground water withdrawals by businesses with high-capacity wells of the type that have dried up lakes, streams and drinking water.

Like the regulation of high-capacity wells, state efforts to prevent water pollution have been controversial in recent years, with many businesses saying regulations are too tough and conservationists saying they are too lax.

Pathogens in poorly managed manure have seeped into aquifers to create health hazards in drinking water for several communities. Across the state, rain carries nutrient-laden animal waste into lakes and streams causing unnatural weed and bacterial growth that limit swimming, fishing and boating.

“Alarmingly, at a time when water pollution from large farms is an increasing public health and environmental concern, the lawsuit seeks to significantly weaken oversight,” said Bob Clarke, president of Friends of the Central Sands.

A spokesman for the DNR, which is named as the defendant in the suit, declined to comment on the pending litigation. A spokesman for the state Department of Justice, which typically defends agencies against lawsuits, said the agency is reviewing the lawsuit.

The head of the justice department, Attorney General Brad Schimel, issued a formal opinion last year that said the DNR was overstepping the constraints set by Act 21 when the agency considered the cumulative impact of all high-capacity wells in an area when deciding whether to permit new ones.

In addition to challenging the DNR rules, the dairy business association wants to overturn a draft “guidance” document it says the agency was using to force feedlot operators to spend thousands of dollars to prevent rain from carrying pollutants from feed storage areas.

The U.S. Environmental Protection Agency told the DNR it could no longer allow the use of “vegetative strips” to slow runoff because that had been proven ineffective.

Feedlot operators are now looking at large outlays to build roofs over storage bunkers that sprawl across an acre or more, and to build storage to collect water that runs off the areas, said dairy business association lobbyist John Holevoet.

New requirements should have gone through the rule-making process spelled out by Act 21 to allow more public input and decision-making by elected officials, Holevoet said.

The number of CAFOs in Wisconsin has grown rapidly. The DNR website lists over 300 of them, including about 250 dairy operations.

CAFOs are defined as having 1,000 animal “units” or more. For dairy feedlots, that’s 700 cows, although many of the operations milk thousands of animals.

Citing concerns about water pollution and other problems, citizen groups in several parts of the state are fighting in courtrooms and county board meetings to stop permitting of new feedlots or expansion of old ones.

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Steven Verburg is a reporter for the Wisconsin State Journal covering state politics with a focus on science and the environment as well as military and veterans issues.