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Two Developments in Regulating CAFO Operations

The same week the Wisconsin Department of Natural Resources (DNR) released a much anticipated “Statement of Scope” on concentrated animal feeding operation rule revisions “in areas of the state with shallow soils overlaying fractured bedrock” that is being hailed as a victory for the Door-Kewaunee Legislative Days and Rep. Joel Kitchens, it was announced that Dane County Judge John Markson ruled that the DNR overstepped its authority by ignoring a 2014 legal decision regarding Kinnard Farms of Kewaunee County.

In an October 2014 ruling Administrative Law Judge Jeffrey Boldt called for a cap on the number of cows at Kinnard Farms and that the farm establish on- and off-site groundwater monitoring.

Acting on behalf of Kinnard Farms, attorneys with Michael Best & Friedrich of Madison asked DNR Secretary Cathy Stepp to consider Boldt’s decision in light of the limitations imposed by Act 21, a 2011 attempt by the Walker administration to rein in “unelected, unchecked bureaucrats,” as described in an April 2016 “client alert” from the Best law firm. The client alert also states that the specific reform of Act 21 means those “unchecked bureaucrats” now “have only the powers or authorities that are granted to them by the Legislature and have no inherent authority under the Wisconsin Constitution. As such, the Legislature can giveth and taketh away.”

Stepp followed the law firm’s lead and in a Sept. 11, 2015, news release said the DNR would not enforce the herd cap or off-site monitoring because “the state Department of Justice has clarified that we cannot legally set a maximum number of animal units for Kinnard Farms or require an offsite groundwater monitoring system. As advised by DOJ, it would be a violation of state law.”

Judge Markson saw things differently.

“The laws that provide structure and predictability to our administrative process do not allow an agency to change its mind on a whim or for political purposes,” he wrote regarding the DNR’s decision in the Kinnard case. “The people of Wisconsin reasonably expect consistency, uniformity and predictability from their administrative agencies and from the Department of Justice…. DNR had no authority to reverse [its own final] decision. Its attempt to do so is without any basis in law, and it is void.”

Act 21 is also the basis for the May opinion from Attorney General Brad Schimel that essentially stripped the DNR of its authority to regulate pumping from high capacity wells.

“We are pleased that courts are rejecting the claim that DNR’s hands are tied by Act 21, and we hope this is the beginning of many court decisions that restore one of the most critical functions we rely on our DNR for: protection of our water,” said Elizabeth Wheeler, senior staff attorney with Clean Wisconsin.

The Kinnard family issued a statement on July 18 that states their understanding of “the importance of protecting our natural resources” and that they “go the extra mile to protect our precious land and water resources.”

They also say both the DNR and Judge Markson got it wrong.

“Unfortunately, our family farm finds itself in the middle of a process that was created by the Wisconsin Department of Natural Resources making the wrong decision in the first place,” the statement says. “This case is ultimately about the scope of DNR’s legal authority and not our farm. We are disappointed in Judge Markson’s decision and believe he got it wrong on the law. We are considering all of our options, including our right of appeal.”

The rule revisions issued by the DNR are the result of the workgroups that met in Kewaunee County and delivered the Groundwater Collaboration Workgroup Report in June, with 65 recommendations for addressing groundwater contamination in Kewaunee County.

The Statement of Scope for the rule revision states that the changes will “establish agricultural nonpoint source performance standards targeted to abate nonpoint source pollutions in areas of the state with shallow soils overlaying fractured bedrock.

“The department has found that groundwater and surface water standards will not be attained by simply implementing the statewide performance standards and prohibitions in sensitive areas (karst geology with shallow soils) and that targeted performance standards are necessary to attain groundwater and surface water standards.”

“That’s a huge victory,” said Rep. Joel Kitchens. “That’s what everybody’s been asking for all along and it’s just a huge shift. I think the solution is sort of in view. I think the governor is supportive of it as well. I’ve spoken with him.”

Russ Rasmussen, head of the DNR’s Water Division, said he is confident the rule revisions will be approved, but he adds that there is a process involved. Gov. Walker signed the approval for the revisions to go the Natural Resources Board when they meet in Ashland on Aug. 3. But that is just to get the ball rolling. There will also be the formation of a technical advisory committee to draft the rule revisions. The draft rules then go to public hearings, and the committee reconvenes to consider public comment. They hope to have the final package drawn up for consideration again by the Natural Resources Board in the fall of 2017, and then on to the Legislature.

“We’re hoping that we will be able to get it to the Legislature before the end of their session in 2018,” Rasmussen said. “It’s a fairly long process but on purpose so that we make sure everyone should have input has it.”

He adds that while some people might think this is too long a time, he points out that administrative rule changes can take as many as five years, but this is being handled “lightning fast” in governmental terms because everyone has a sense of urgency about the need to correct Kewaunee County’s groundwater issues.

“We trust all the stakeholders will have sense of urgency,” Rasmussen said. “One of the reasons I think we’ll be able to move quicker is all the work that has already been done the past year by the groundwater task force groups.”

The idea of considering the karst region differently from other areas of the state was a priority issue brought to Madison the spring of 2015 through Door/Kewaunee Legislative Days, when area residents descend on the capital to air their concerns to legislators.

Bill Schuster, director of the Door County Soil and Water Conservation Department, was a member of the Legislative Days group. “It is very encouraging that the DNR has stated a commitment to take some action to address a serious water quality concern that this area has been challenged with for a very long time,” he said in a statement released by Legislative Days Steering Committee. “Rep. Kitchens and I agree that it is now our collective role to continue to remind the DNR of their commitment to ensure meaningful groundwater quality protection results.”

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