The state Supreme Court on Monday hears arguments in a case that could determine whether the Wisconsin Department of Natural Resources failed to adequately protect water from manure pollution when awarding a permit to a giant dairy farm in northeastern Wisconsin — or whether the agency lacks the authority to issue such restrictions.
The case involving Kinnard Farms, a Kewaunee County mega-dairy farm with about 8,200 cows, has become a regulatory battleground, drawing a litany of environmental and industrial groups in support or opposition to the lawsuit. The GOP-controlled state Legislature even petitioned the court to intervene on behalf of the owners of Kinnard Farms, which the justices allowed.
Much of the debate focuses on legal interpretations of 2011 Act 21, which Kinnard Farms and its advocates argue limits agency powers to what is explicitly written in statute, leaving little wiggle room for interpretation. Those parties argue that the DNR lacks authority to cap Kinnard’s animal population and require groundwater monitoring off-site — conditions ordered by lower courts.
“Act 21’s application here is straightforward: because no statute or rule explicitly required or explicitly permitted DNR to impose off-site groundwater-monitoring or animal-unit maximum conditions in the permits at issue, DNR lacked authority to do so,” lawyers for the Legislature argue in a brief.
Kinnard Farms, which did not respond to a request for comment, argues that the Legislature, in thrusting itself into the dispute, “has made it clear” that it wants to restrain the DNR.
Midwest Environmental Advocates, which is suing on behalf of Clean Wisconsin and several area residents, argues that Wisconsin law explicitly grants DNR the authority in question, and the federal Clean Water Act requires such actions to protect the area’s water.
The case is back in the spotlight amid growing scrutiny of industrial farms in some Wisconsin communities. Midwest Environmental Advocates says the court ruling could affect not just the DNR’s authority but “may have far-reaching implications for other state agencies,” Adopting the industry’s view of Act 21, the environmental groups argue, “would create widespread uncertainty about agency authority.”