Clean Wis., Inc. v. Wis. Dep't of Nat. Res.

Decision Date08 July 2021
Docket NumberNo. 2016AP1688,2016AP1688
PartiesClean Wisconsin, Inc., Lynda Cochart, Amy Cochart, Roger DeJardin, Sandra Winnemueller and Chad Cochart, Petitioners-Respondents, v. Wisconsin Department of Natural Resources, Respondent-Appellant, Kinnard Farms, Inc., Intervenor-Co-Appellant, Wisconsin Legislature, Intervenor.
CourtWisconsin Supreme Court

2021 WI 71

Clean Wisconsin, Inc., Lynda Cochart, Amy Cochart, Roger DeJardin,
Sandra Winnemueller and Chad Cochart, Petitioners-Respondents,
Wisconsin Department of Natural Resources, Respondent-Appellant,
Kinnard Farms, Inc., Intervenor-Co-Appellant,
Wisconsin Legislature, Intervenor.

No. 2016AP1688


ORAL ARGUMENT: April 12, 2021
July 8, 2021


For the intervenor-co-appellant, there were briefs filed by Jordan J. Hemaidan, Nancy Cruz, and Michael Best & Friedrich LLP, Madison. There was an oral argument by Jordan J. Hemaidan.

For the intervenor, there were briefs filed by Eric M. McLeod, Kirsten A. Atanasoff, Lisa M Lawless, and Husch

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Blackwell LLP, Madison and Milwaukee. There was an oral argument by Eric M. McLeod.

For the petitioners-respondents, there was a brief filed by Andrea Gelatt, Rob Lee, and Midwest Environmental Advocates, Madison; with whom on the brief was Evan Feinauer and Clean Wisconsin, Inc., Madison. There was an oral argument by Andrea Gelatt.

For the respondent-appellant, there was a brief filed by Jennifer L. Vandermeuse and Gabe Johnson-Karp assistant attorneys general; with whom on the brief was Joshua L. Kaul, attorney general, Madison. There was an oral argument by Jennifer L. Vandermeuse.

An amicus curiae brief was filed by Ryan J. Owens, Verona.

An amicus curiae brief was filed on behalf of Wisconsin Environmental Health Network by John S. Greene, Madison.

An amicus curiae brief was filed on behalf of Wisconsin Manufacturers and Commerce, Midwest Food Products Association, Wisconsin Cheese Makers Association, Dairy Business Association, Wisconsin Potato and Vegetable Growers Association, Wisconsin Farm Bureau Federation, Wisconsin Paper Council, Wisconsin Corn Growers Association, Wisconsin Dairy Alliance, and Venture Dairy Cooperative by Robert I. Fassbender and Great Lakes Legal Foundation, Madison; with whom on the brief was Luca T. Vebber, Corydon J. Fish, and Wisconsin Manufacturers & Commerce, Madison.

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An amicus curiae brief was filed on behalf of Food & Water Watch, Family Farm Defenders, and Sustain Rural Wisconsin Network by Zach Corrigan, Madison.

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This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.

(L.C. No. 2015CV2633)

KAROFSKY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ANN WALSH BRADLEY, and DALLET, JJ., joined. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY, J., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

HAGEDORN, J., did not participate.

APPEAL from an order of the Circuit Court for Dane County, John W. Markson, Judge. Affirmed.

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¶1 JILL J. KAROFSKY, J. This case is about whether the Wisconsin Department of Natural Resources (DNR) had the explicit authority to impose an animal unit maximum condition and an off-site groundwater monitoring condition upon a Wisconsin Pollutant Discharge Elimination System (WPDES) permit it reissued to Kinnard Farms, Inc. (Kinnard) for its concentrated animal feeding operation (CAFO). The circuit court decided that the DNR had the explicit authority to do so, and the court of appeals certified this appeal to us, pursuant to Wis. Stat. § (Rule) 809.61 (2017-18).1

¶2 We conclude that the DNR had the explicit authority to impose both the animal unit maximum and off-site groundwater monitoring conditions upon Kinnard's reissued WPDES permit pursuant to Wis. Stat. § 283.31(3)-(5) and related regulations. Accordingly, we affirm the order of the circuit court.


¶3 Kinnard operates a large CAFO2 in the Town of Lincoln. In 2012, Kinnard wanted to expand its dairy operation by

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building a second site and adding 3,000 dairy cows. The expansion required Kinnard to apply to the DNR for reissuance of its WPDES permit to include both the original site and the proposed expansion.3 Wis. Stat. § 283.59(1). The DNR approved Kinnard's application and reissued Kinnard's WPDES permit with effective dates of September 1, 2012-August 31, 2017.4

¶4 The five named petitioners in this appeal sought review of the reissued WPDES permit because they lived near Kinnard's CAFO, had private drinking wells, and were concerned that Kinnard's proposed expansion would exacerbate current groundwater contamination issues. The petitioners alleged that the reissued WPDES permit was inadequate because, among other failings, it did not set a "maximum number of animal units" or "require monitoring to evaluate impacts to groundwater." Accordingly, they petitioned for a contested case hearing to review the DNR's decision, pursuant to Wis. Stat. § 283.63(1).

¶5 The DNR granted the petition and referred the matter to an administrative law judge (ALJ), pursuant to Wis. Stat. §§ 227.43(1)(b), 283.63. Kinnard filed for summary judgment, alleging that the DNR lacked statutory authority to impose an

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animal unit maximum, citing 2011 Wis. Act 21, specifically Wis. Stat. § 227.10(2m).5 The ALJ denied the motion, concluding there were genuine issues of material fact, and set the matter for an evidentiary hearing.

¶6 The ALJ conducted a four-day evidentiary hearing during which Town of Lincoln community members who lived and worked near Kinnard's CAFO testified about the contamination of their well water and the impact of that contamination on their businesses, homes, and daily lives. The community members conveyed their belief that Kinnard's CAFO was the source of the well water contamination. The ALJ also heard testimony from a number of experts who established that up to 50 percent of private wells in the Town of Lincoln were contaminated and that 30 percent of wells tested positive for E. coli bacteria.6 Additionally, an expert testified about the particular features of the land underlying Kinnard's CAFO which made that land extremely susceptible to groundwater contamination. According

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to the testimony, pollution could travel over half a mile through groundwater into wells in 24 hours.7

¶7 Based on the evidence presented, the ALJ concluded that the "level of groundwater contamination including E. coli bacteria in the area at or near the [second] site is [] very unusual." Additionally, the ALJ identified "what could fairly be called a groundwater contamination crisis in areas near the site." The ALJ further found that "[t]he proliferation of contaminated wells represents a massive regulatory failure to protect groundwater in the Town of Lincoln." Of import to this appeal, the ALJ determined that, based on the facts presented, the DNR had "clear regulatory authority" to impose the two conditions disputed in this action upon Kinnard's reissued WPDES permit.

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¶8 The first condition was an animal unit maximum. The ALJ ordered the DNR to modify Kinnard's reissued WPDES permit to "articulate the maximum number of animal units allowed at the facility." The ALJ reasoned that "[e]stablishing a cap on the maximum number of animal units will provide clarity and transparency for all sides as to the limits that are necessary to protect groundwater and surface waters." Additionally, the ALJ noted that the condition would assure compliance with the statutory requirement that CAFOs have and maintain 180 days' worth of properly designed manure storage.8 This was especially important due to Kinnard's recent history of noncompliance with this storage requirement. The ALJ also reasoned that "[i]t is not a question of either/or—the 180 day storage requirement represents a good short term measure to detect an impending problem, but the maximum animal unit number represents a useful longer-term management tool."

¶9 The second condition was off-site groundwater monitoring. The ALJ determined that "a groundwater monitoring plan is essential given that the area is 'susceptible to groundwater contamination' within the meaning of Wis. Admin. Code § NR 243.15(3)(2)(a)." According to the ALJ, "it is essential that the [DNR] utilize its clear regulatory

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authority . . . to ensure that Kinnard Farms meet its legal obligation under Wis. Admin. Code § NR 243.14(2)(b)(3)9 not to contaminate well water with fecal bacteria from manure or [from] process wastewater." The ALJ ordered the DNR to modify the permit "to include a groundwater monitoring plan which includes no less than six monitoring wells. If practicable, the permit-holder shall include at least two monitoring wells which are located off-site on voluntarily willing neighboring properties with water contamination issues or risks." The ALJ justified the off-site monitoring as "better and more likely to yield results that identified problem areas" and acknowledged that "[o]bviously, this would require the voluntary participation of off-site property owners."10

¶10 Kinnard appealed the ALJ's decision to the DNR Secretary, pursuant to Wis. Admin. Code § NR 2.20(1) (February 2019).11 The DNR Secretary denied review, reasoning that the issue "would most appropriately [be] decided by the courts of this state." Kinnard then filed a petition for judicial review

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in the Kewaunee County Circuit Court. The circuit court determined that the petition for judicial review was premature and was not "final" for purposes of appeal until the DNR imposed the conditions ordered by the ALJ.

¶11 At this point, the DNR began implementing the two conditions. Shortly thereafter, in August 2015, the DNR sought review from the Wisconsin Department of Justice (DOJ) regarding its ability to impose the conditions upon Kinnard's reissued WPDES permit in light of Wis. Stat. § 227.10(2m). DOJ opined that § 227.10(2m) precluded the DNR from imposing the conditions, which prompted the DNR Secretary to reconsider her decision denying review of the ALJ's decision. The DNR Secretary concluded that such a review was...

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