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Judge Allows Lawsuit Over DBA vs. DNR Settlement to Proceed
Wisconsin Ag Connection - 03/20/2018

A Milwaukee County judge has ruled that environmental groups should have the right to be heard as plaintiffs in a legal matter between the Dairy Business Association and the Department of Natural Resources regarding farm runoff policies, even though the two have since settled their issues out of court. On Monday, Circuit Court Judge William Pocan denied the DNR's motion to dismiss the case that six organizations filed in an attempt to intervene in the lawsuit over how the agency regulates rainwater on larger farms.

As Wisconsin Ag Connection reported last July, the dairy group claimed the DNR had implemented new regulations that changes how farmers manage rainwater that comes into contact with feed storage or calf hutch areas without going through an approval process required by state law. DBA President Mike North said the agency once encouraged farmers to build vegetative treatment areas, or VTAs, where the water is treated to prevent runoff and protect water quality. But in 2016, it suddenly began requiring farmers to collect all the water and add it to manure pits for spreading on fields.

Two months later, six environmental groups--including Clean Wisconsin, the Clean Water Action Council, Friends of the Central Sands, Midwest Environmental Advocates, Milwaukee Riverkeeper and Wisconsin Wildlife Federation--filed a motion to intervene in the suit, claiming the case could have major ramifications on ground water quality.

Then on October 19, 2017, the two sides announced that a settlement had been reached, with the DNR admitting it overreached its legal authority and vowed to follow 'the proper rulemaking process going forward.' The agency also agreed to rescind the blanket change in standards for vegetative treatment areas and calf hutches; and would drop a third claim related to a large farm's duty to apply for a permit (which DBA had argued 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).

Once the settlement was finalized, the Midwest Environmental Advocates filed a petition for judicial review and declaratory judgment in Milwaukee County to challenge the agreement. But the DNR moved in January to dismiss that effort, arguing that the settlement is not a policy or rule change.

Judge Pocan agreed with the plaintiffs that their concerns warrant judicial review of DNR's quick settlement with DBA.

"They had to go to court to do it, but today a diverse group of citizens dedicated to Wisconsin's clean water future preserved the public's right to have a say in whether or not the DNR can make drastic changes in water regulations without following the legal rulemaking process," said MEA Director Kim Wright.

She adds that the settlement removed the current legal authority from DNR staff charged with regulating water pollution already known to put families with private drinking water wells at risk.

"This case is about defending DNR's authority to protect water quality through the science-based application of state law to prevent pollution from CAFO vegetated treatment areas and calf hutches," the MEA said in a statement on its website. "The basis for the challenge is that the DBA-DNR settlement agreement changes DNR policy and rules, which DNR is only allowed to do through rulemaking procedures--not through agreements with special interest groups."

When the DBA first filed its challenge against the DNR last summer, it claimed that about 100 of its members were negatively impacted by the sudden change in policy.

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