The Wisconsin Supreme Court has been asked to settle a series of longstanding legal disputes over natural resources, a decision that could shape the power of state regulators to protect public waters from pollution and overuse for years to come.
Supreme Court rulings in the lawsuits between conservationists and businesses will put an imprint on every service of state government, a state court of appeals panel said Wednesday as it asked the top court to take the cases.
The final result will determine the balance of power between elected politicians who make the laws and technical experts who implement it.
Despite far-reaching implications of the cases, at their core is a dogged effort by people who live near large agricultural operations to preserve the Department of Natural Resources’ ability to protect public water rights and enforce compliance with clean water standards.
Business groups on the other side of the argument say what’s at stake is keeping power in the hands of elected legislators who are directly accountable to constituents, so that state employees don’t go too far in enforcing laws and cut into private profits.
“As the questions presented have statewide concern and implication, we request that the Wisconsin Supreme Court accept certification in these cases,” the three judges said in their decision.
The appeals panel asked the top court to decide 10 lawsuits that have been consolidated into two cases.
A key question is whether a state law or a previous Supreme Court decision should take precedence. The 2011 law shifted authority from state employees to politicians. The 2011 Supreme Court decision confirmed previous rulings about DNR responsibility for protecting water.
The 2011 law states that state agencies can’t take actions that haven’t been explicitly authorized in law or rules approved by elected officials.
But in the Supreme Court decision that same year, the court told the DNR it couldn’t ignore its duty to take steps to ensure that one group didn’t deny another group the benefits of access to water.
The 2011 Lake Beulah Management District v. DNR decision hinged on a provision of the state Constitution that guarantees that government will make sure the waters of the state are available for the benefit of all.
In its ruling, the top court said the recently enacted law didn’t affect its analysis of the Lake Beulah case.
Agriculture is a major economic driver in Wisconsin, and farm operators say they need to be able to pump groundwater to keep crops healthy. And dairy operators generate huge amounts of manure that need to go somewhere, so it is spread on the ground.
But in some parts of the state, lakes and streams have dried up when nearby farmers pumped heavily from groundwater.
In other places, drinking water has been contaminated by farm runoff. Across the state, agricultural runoff of manure and fertilizer is a major contributor to unnatural growths of vegetation, algae and bacteria that limit recreational use of lakes and streams.
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“Both of these cases require the court to decide whether water will be protected for public benefit, or instead overused or polluted for the private gain for a handful of corporate farms,” said Evan Feinauer, staff attorney for Clean Wisconsin, a Madison nonprofit that is a plaintiff in the lawsuits.
DNR in cross hairs
Sarah Geers, an attorney for Midwest Environmental Advocates, has been arguing in court that the DNR has statutory authority to take stronger action to reduce water pollution — but too often it isn’t using it.
Citizens and conservation groups have sued the DNR in attempts to force the agency to do more to protect water.
The DNR declined to comment. Also not commenting were Wisconsin Manufacturers & Commerce and the Wisconsin Dairy Business Association, which are among the large business groups that have intervened in some of the cases on DNR’s behalf.
Case from 2012
Jordan J. Hemaidan, a lawyer at the Madison firm of Michael Best and Friedrich who represents a dairy operation that is the focus of one lawsuit, referred a request for comment to his client. The client, Kinnard Farms, said in a statement that it views the panel's action as "purely procedural development, and looks forward to the case moving toward an efficient and clear resolution.”
One of the lawsuits challenges a DNR decision to allow Kinnard to expand in Kewaunee County, an area plagued by manure-contaminated drinking water.
The case began in 2012 as an appeal by a handful of citizens over DNR’s approval of a permit for the feedlot to nearly double in size to more than 6,200 cows, a herd conservation groups estimated would generate 70 million gallons of manure annually.
Jeffrey Boldt, an administrative law judge who heard the initial challenge, said “massive regulatory failure” had caused the widespread drinking water contamination in that area.
Boldt ordered the DNR to add to Kinnard’s permit a limit on the number of animals and a requirement for groundwater monitoring so pollutants could be detected before they reached more drinking water.
At first the DNR agreed, but then it refused to make the changes. In a lawsuit filed in Dane County Circuit Court, a judge ruled against the DNR, which took the case to the court of appeals.
Another group of lawsuits involves challenges to DNR permits allowing large-scale withdrawals of groundwater by farm operations in places where department experts had said new wells would put drinking water at risk and worsen problems of lakes and streams drying up.
A Dane County judge invalidated eight high-capacity well permits. The DNR again turned to the court of appeals.
In asking the Supreme Court to decide the cases, the Waukesha-based appeals court panel said it agreed with parties on both sides about one thing.
“We agree with the State and Clean Wisconsin that the court’s determination regarding the scope and breadth of (the 2011 state law) will have implications far beyond the permitting process for high capacity wells and pollution discharge elimination systems,” the three appeals court judges said in their decision. “(It) will touch every state agency within Wisconsin.”
[Editor's note: This story has been updated to clarify that Jordan Hemaidan referred a request for comment to his client, Kinnard Farms, which said it views the panel's action as "purely procedural development, and looks forward to the case moving toward an efficient and clear resolution.”]