Can the DNR impose rules that will protect Wisconsinites drinking water? More specifically, can the DNR impose limits on numbers of animals in a Concentrated Animal Feeding Operation, require monitoring of nearby wells, and restrict the amount of water drawn from groundwater? Yes, says the Wisconsin Supreme Court, in two rulings that advance the cause of clean drinking water in rural Wisconsin.
These cases were both basically about whether the DNR has the authority to carry out its mandate to protect Wisconsin’s environment. The Court delivered a setback to Republican legislators who have been trying, through Act 21, to require all specific regulatory actions by agencies like the DNR to be written into state law. In two 4-2 decisions, the Court ruled that the individual actions of agencies like the DNR do not need to be written into law so long as their ultimate goals are, and that the DNR has authority to take regulatory actions in pursuance of those goals.
Citizens casually following the issue can be excused for being confused about who’s on what side, however – because both cases were challenges to the DNR.
In the Kinnard Farms case, plaintiffs challenged a permit issued by the DNR, claiming it was too lenient to protect local water quality. A series of decisions required the DNR to add requirements to the permit, including groundwater monitoring at the fields in which they planned to spread manure and an animal unit limit. From the beginning, therefore, this was a case about whether the DNR would, or could, set limits on agricultural pollution.
After strengthening the requirements and after several years of rebuffing appeals filed by Kinnard Farms, the DNR did an about-face. In 2015, it issued a decision refusing to enforce the requirements on the grounds that that it did not have authority to regulate Kinnard Farms. This was the issue sent to the Supreme Court, and unambiguously answered in favor of the DNR’s right to regulate.
The second case considered by the Supreme Court is similar. Like the Kinnard case, it began with local residents challenging DNR approval of eight high-capacity well applications made by farmers in the Central Sands region. The DNR had originally put these applications on hold, but approved them after Attorney General Brad Schimel issued an opinion that Act 21 prevented the DNR from imposing such restrictions. Once again, the Supreme Court sided with plaintiffs claiming that the DNR had the authority to protect water quality.
While environmental groups are pleased by these specific decisions, the overarching issue is the meaning of Act 21. Under the Walker administration, Attorney General Brad Schimel maintained that Act 21 required the types of regulations in these cases to be specifically approved in state law before the DNR could impose them. Environmental advocates were understandably alarmed by this interpretation, and are elated by the Supreme Court’s clear decision that the DNR has the authority to protect Wisconsin’s environment.
Dissenters on the court claim that these two decisions take rule-making authority away from elected governments and hand them to bureaucrats. Since its creation, however, Act 21 has been presented as a way for the republican legislature to decrease or prevent regulation.
Act 21 could potentially give the legislature similar veto powers, by either direct opposition or inaction, over every piece of regulation proposed by every state agency and local government. It’s not just environmentalists who have reason to applaud the recent Supreme court decisions limiting its scope.
Written by Pat Bowne, Water Team member