CAFO owners suing to end DNR permits have spilled more than 26,000 gallons of manure

The factory farm-owning board members of two dairy industry groups suing to exempt themselves from the Department of Natural Resource’s (DNR) permit requirements for polluters have been responsible for more than a dozen manure spills, resulting in more than 26,000 gallons of spilled manure, since 2006, DNR records show. 

In May, the Wisconsin Dairy Alliance (WDA) and Venture Dairy Co-Op, two lobbying and advocacy groups that represent the interests of the state’s largest dairy farms, filed a lawsuit in Calumet County Circuit Court against the DNR’s Wisconsin Pollutant Discharge Elimination System (WPDES) program. The program requires any entity that discharges pollution into the state’s waterways to obtain a permit. 

An application for a WPDES permit must be made within 90 days of becoming a factory farm or expanding. The permits last for five years before they must be renewed. CAFOs — factory farms with more than 1,000 “animal units,” which is equivalent to about 700 milking cows — are also required to submit plans to the DNR for how they intend to manage the manure created on the farm. 

If a manure spill occurs, the permit requires the owner to notify the agency and is responsible for the cleanup. The permits also need to be reapproved whenever an operation is planning to expand and every permit application is subject to a public comment period. 

In recent years, a fight between the agriculture industry and environmental groups has grown more contentious, with environmentalists saying that factory farms, by nature of their size, produce more potentially damaging manure which must be regulated and controlled. Factory farmers say they’re overburdened by the existing agency regulations.

A manure spill can cause harmful substances such as nitrates, E. coli and phosphorus to enter the state’s ground and surface waters — potentially making drinking water dangerous to consume and causing fish to die. 

Two years ago, the Wisconsin Supreme Court ruled that the DNR had the authority to use the WPDES permits to impose conditions on factory farms as a way to control their environmental effects. 

The lawsuit, which was brought on behalf of the WDA and Venture by Wisconsin Manufacturers and Commerce (WMC), the state’s largest business lobby, argues that having to comply with the “time-consuming, costly process” of obtaining a permit that imposes “substantial costs and regulatory burdens” on the farms, is against the law because of two previous federal court decisions in 2005 and 2011 about the U.S. Environmental Protection Agency’s own permit requirements for polluters. 

Those decisions found that the EPA couldn’t require factory farms to obtain a permit until after they’ve already discharged a pollutant into “navigable waters.” 

“One of these rules requires CAFOs to obtain a WPDES permit for the discharge of pollutants regardless of whether they actually discharge pollutants into waters of the state,” the lawsuit states. “This rule exceeds the Department’s statutory authority, conflicts with state law, and unlawfully exceeds the requirements of the federal Clean Water Act.” 

WMC has been involved in several lawsuits seeking to weaken the state’s environmental protections in recent years. One lawsuit has sought to prevent the DNR from using the state’s toxic spills law from requiring polluters to clean up contamination caused by the cancer causing chemicals known as PFAS. 

Conservation groups warn that if the lawsuit is successful, the two dairy groups and WMC will have succeeded in totally dismantling the state’s method of regulating the 262 factory farms currently operating in the state. 

“We think the DNR clearly has authority to regulate CAFOs,” Peg Sheaffer, spokesperson for Midwest Environmental Advocates, says. “The WPDES program, while not perfect, plays an important part in protecting our environment and public health.” 

“A victory for them would remove the main source of regulation over CAFOs, [there’d be] no oversight over all that manure.” she continued. “The idea that these groups are advancing is that CAFOs are allowed to self-determine when they pollute. There’s no evidence CAFOs can be trusted.” 

Venture Co-Op is considered “in bad standing” as a registered business in Wisconsin because it hasn’t filed an annual report with the Department of Financial Institutions since 2021. In that year’s report, the organization lists five members of its board of directors. Four of them have had several manure spills on or near their properties since 2006. 

Larry Dufek operates Dairyland Farms, which according to its WPDES permit has 9,930 animal units on its property. Dufek sits on the Venture Board and serves as the secretary for WDA, according to the organization’s 2021 tax filing. 

Dufek’s operations have had three spills since 2006. A spill on his property in 2018 caused by a ripped hose caused more than 10,000 gallons of manure to flow into a nearby creek. 

Bob Zahn, who operates Zahn’s Farms and its 10,328 animal units, is also on the Venture board. Zahn’s operation has had three spills since 2016, two of them caused by tanker trucks full of manure crashing and spilling manure into a roadside ditch. 

In 2016, one of the overturned trucks spilled 6,000 gallons of manure. In 2019, another truck spilled 5,000 gallons of manure into a ditch. The 2019 spill, according to a DNR report on the incident, most likely occurred because the “farmer went around the corner too fast, causing the manure to slosh and flip the trailer.” 

Jim Ostrom, another Venture board member and a co-owner of Milk Source, which operates several dairies across the state totalling nearly 39,000 animal units, has had three spills at his operations since 2016. Two of the spills occurred while a tanker truck was hauling manure and a third happened after a hose broke off a tank. 

Randy Schmidt, who owns S & S Jerseyland Dairy and its 7,164 animal units has had four spills on his property and previously been the subject of a DNR enforcement action for failing to comply with the requirements of his permit. One of those spills occurred in 2007 when a leak caused just 10 gallons of manure to flow into a nearby ditch, but in 2011 a tipped over tanker truck spilled 800 gallons into a ditch. 

In 2017, the DNR brought its enforcement action against Schmidt because he had spread manure onto a field within 25 feet of a wetland. 

Beyond the most recently known members of Venture and WDA’s board, one of Venture’s founding board members, Todd Tuls, is the owner of Emerald Sky Dairy in St. Croix County. The Emerald Sky Dairy has repeatedly been subject to DNR enforcement actions for failures to contain the manure it produces. 

In 2016, a leak at the Emerald Sky Dairy caused a 300,000 gallon spill into a nearby wetland. Despite the requirements of the dairy’s WPDES permit, the spill wasn’t reported to the DNR for months. Solid manure three feet deep had built up by the time DNR staff arrived on the scene. 

The DNR and Emerald Sky reached an $80,000 settlement over that spill, but another spill in 2019 caused manure to run off a field and into a nearby creek, causing a fish kill. The dairy reached a $65,000 settlement over that incident, yet locals still have concerns over their water quality. 

A public well in the nearby Town of Emerald has been found to have high levels of nitrates. 

Representatives for Venture Co-Op, WDA and WMC did not respond to a request for comment.