A case involving the authority of the Department of Natural Resources (DNR) to regulate water pollution from concentrated animal feeding operations (CAFOs) is headed to Wisconsin’s Supreme Court. This development marks a new phase for a case that began more than six years ago when neighbors of Kinnard Farms, one of the state’s largest CAFOs, filed a petition with the DNR requesting a review of the water-pollution permit issued to Kinnard in 2012. The petitioners, represented by Midwest Environmental Advocates (MEA), filed the challenge because Kinnard’s water-discharge permit did not do enough to protect water resources and public health.
In 2014, an administrative law judge issued a decision that included orders for groundwater monitoring and capping the number of animals as enforceable permit conditions. The DNR originally agreed with the 2014 decision, but former Secretary Cathy Stepp later denied the agency had the authority to do so.
A Dane County Circuit Court overturned Stepp’s decision and rejected the Justice Department’s narrow interpretation of Act 21, which limited the DNR’s authority to impose permit conditions unless they were “explicitly” authorized by statute or rule.
When the DNR appealed the circuit court decision, an appeals court declined to issue a decision, asking instead that the Wisconsin Supreme Court take the case, along with a high-capacity-well permitting case that also involves Act 21. MEA submitted amicus (friend of the court) briefs in the high-capacity-well case as well.
Earlier this week, the Supreme Court agreed to hear the case and issue a final ruling. Its determination regarding the scope and breadth of Act 21 will likely have far-reaching implications for every state agency.