A dairy trade group has filed a lawsuit against Wisconsin’s Department of Natural Resources (DNR) alleging that the agency both exceeded its authority and failed to follow required public rulemaking processes when it set new water pollution control regulations affecting dairy and animal feeding operations. Dairy Bus. Ass’n v. Wis. Dep’t of Nat. Res., No. 2017CV001014 (Wis. Cir. Ct., Brown Cty., filed July 31, 2017). The complaint involves recent administrative rules and guidance issued by DNR related to feed storage leachate runoff and calf hutches. 

DNR is the state agency tasked with enforcement of the federal Clean Water Act and is responsible for issuing state Pollutant Discharge Elimination System permits (WPDES) to entities that discharge pollutants into state waters. The complaint asserts that the goal of the permit system is “parity” with the Clean Water Act (CWA) and state regulations “shall comply with and not exceed the requirements of the federal water pollution control act.” Under the CWA, the plaintiffs assert, entities with concentrated animal feeding operations (CAFO) must obtain permits only if they have an actual discharge into U.S. navigable waters. However, the plaintiffs claim that for years, DNR has exceeded its authority under state law by requiring anyone with a CAFO to “follow a complex and costly regulatory process” to obtain a permit regardless of whether they have a discharge or whether they intend to have one in the future.

The plaintiffs also claim that DNR failed to follow the public rulemaking process required by state law when it created a new rule governing feed storage leachate runoff and issued guidance setting new rainfall runoff calculations and requiring retrofitting of existing structures to bring them into compliance. The trade group is seeking declaratory judgments and injunctive relief.