Supreme Court will determine DNR’s authority to protect drinking water

Glass of water being filled from a tap
Photo courtesy the Centers for Disease Control

This week, Wisconsin’s Supreme Court heard oral arguments in a nearly decade-long environmental protection case. The Court’s decision will likely have an impact on the ability of the Department of Natural Resources (DNR) to protect drinking water from agricultural pollution. 

The case began more than eight years ago in Kewaunee County when Kinnard Farms, a concentrated animal feeding operation (CAFO), applied for and received a permit to expand. Five neighbors of the mega-dairy, represented by Midwest Environmental Advocates, filed a legal challenge to the permit. The neighbors asked for modest permit conditions to protect the safety of their drinking water and the health of their families.

At the time the case was filed, Kewaunee County was the epicenter of Wisconsin’s drinking water crisis. Kewaunee County Land and Conservation Department records showed that 50% of private wells nearby were unsafe to drink from, either because they tested positive for total coliform bacteria or because they exceed groundwater quality standards for nitrates. 

Kinnard Farms, backed by special interest groups, have fought the neighbors and their request for modest drinking water protections every step of the way. In doing so, these interest groups are advancing arguments that would significantly weaken the authority of the state DNR to protect clean water and public health across Wisconsin.
 
In 2014, an administrative law judge agreed with neighbors of Kinnard Farms, finding that Kewaunee County’s drinking water crisis had been caused by “massive regulatory failure.” The judge ordered that Kinnard’s permit include a requirement for groundwater monitoring in areas where vast amounts of liquid manure are spread on agricultural fields and a limit on the number of cows allowed. 

Although the DNR originally agreed to carry out the judge’s decision, the agency, under former Secretary Cathy Stepp, later did an about-face and denied that it had the authority to impose permit conditions. The DNR reversed course based on a flawed opinion issued by former Attorney General Brad Schimel, who argued that, under Act 21, state agencies may not impose permit conditions that are not “explicitly” authorized by statute or rule, even though the Legislature has given DNR explicit grants of authority to issue these conditions. A circuit court later overturned Secretary Stepp’s decision and rejected Schimel’s interpretation of DNR’s authority.

After another appeal and months of procedural delays, the Wisconsin Supreme Court agreed to hear the case. Not long after, Attorney General Josh Kaul filed a motion indicating that the position of the Department of Justice had changed and that the DNR does in fact have the authority to require CAFOs to comply with permit conditions that protect water resources. This good news was tempered by the Legislature’s request to intervene in the case. Republican lawmakers hired private attorneys paid for by taxpayers to continue their attack on agency authority. 

Despite more than eight years of obstacles and delays, Kewaunee County families have not given up. They continue to fight for the clean water protections they deserve. 

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Kewaunee County may be ground zero for groundwater contamination in Wisconsin, but, if the Court accepts the arguments made by industry in the Kinnard case, “regulatory failure” could very well spread across the state. Even as the Supreme Court is considering the Kinnard case, groups like Wisconsin Manufacturers and Commerce are initiating new legal actions based on similar claims to significantly weaken the hazardous spills law and other key environmental protections. 

Although legal disputes about the authority of DNR may seem academic, neighbors of Kinnard Farms know firsthand that the outcome of these cases should be of concern for all of us who care about public health and clean water.