The Dairy Business Association submitted a revised complaint in its lawsuit against the Wisconsin Department of Natural Resources on Friday, but a cursory review shows the only significant change is the addition of two individual defendants.
The association representing dairy farmers filed the suit against the Wisconsin Department of Natural Resources in Brown County Circuit Court on July 31, charging that the agency has exceeded its authority by issuing and enforcing “blatantly illegal rules related to the permitting and operation of large Wisconsin livestock farms.”
Friday’s revision appears to be identical to the original suit except that in addition to the DNR as an agency, the DBA is now also suing Karl Thiede, acting DNR secretary, and Mark D. Aquino, director of the DNR’s Office of Business Support and Science, in their official capacities.
“For many years DNR has systematically and illegally required large farmers to apply for and follow a complex and costly regulatory process to obtain a Wisconsin Pollutant Discharge Elimination System Permit even if they do not discharge or intend to discharge any pollutants into the waters of the state,” the suit alleges.
The complaint specifically alleges that rules governing management of feed storage leachate runoff and calf hutch lots were created and implemented without going through the rulemaking process established by state law.
The complaint asks the judge for six specific rulings:
“A. Declare Wisconsin Administrative Code NR 243.11(3) invalid and unenforceable because it exceeds the authority properly delegated to the DNR.”
That portion of the administrative code is comprised of these two paragraphs:
(a) Except as provided in par. (b), any person owning or operating a large CAFO that stores manure or process wastewater in a structure that is at or below grade or that land applies manure or process wastewater shall have a WPDES permit. A discharge of pollutants from manure or process wastewater to waters of the state by an unpermitted animal feeding operation with 1,000 animal units or more is prohibited. A pasture or grazing area may operate without WPDES permit coverage.
(b) If a person owns or operates an animal feeding operation with 999 animal units or less, and that person expands its operation to 1000 animal units or more due to the purchase of another animal feeding operation, that person has 90 days from the date of the purchase to apply for a WPDES permit.
“B. Declare the Feed Storage Leachate Runoff Guidance and the ‘no discharge’ standard announced therein invalid and unenforceable fiat-rules because they have not been properly promulgated pursuant to Wis. Stat. ch 227.
“C. Declare the DNR’s regulation of calf hutch lots invalid and unenforceable because the legislature has not delegated to DNR authority to regulate based on concerns not also addressed in federal regulations such as ground water concerns and because the DNR is imposing the same ultra vires fiat-rules announced in the Feed Storage Leachate Runoff Guidance to calf hutch lots.
“D. Issue temporary and permanent injunctions enjoining the DNR from enforcing the invalid rules contained in the guidance document.
“E. Issue temporary and permanent injunctions enjoining the DNR from treating calf hutch lots as ‘reviewable facilities’ and attempting to require compliance concerning these lots with standards not properly incorporated into law; and
“E. (sic) Grant such other legal and equitable relief as the Court deems just and proper.”
The DNR had 45 days from the filing date to submit a written response to the court and had not yet done so as of late Friday afternoon.