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Keeping the focus on water: why shifting pollution permits from DNR to DATCP raises questions

Mar 13, 2017

Update: Leaders of the Joint Finance Committee announced their removal of non-fiscal policy items from the budget proposal and this issue is no longer in the proposed state budget. It may, however, be considered as stand-alone legislation by other standing legislative commitees.

 

Since Wisconsin Governor Scott Walker unveiled his state budget, the public learned about his proposal to study a shift in permitting concentrated animal feeding operations from the Department of Natural Resources to the Department of Agriculture, Trade and Consumer Protection.

Agricultural industry reps from the Wisconsin Farm Bureau Federation President and the Wisconsin Dairy Business Association have applauded the idea of moving CAFO permitting to the Ag department. It’s in their best interests to make this move – in fact the Milwaukee Journal Sentinel reported that representatives from the Wisconsin Dairy Business Association met with the Governor’s staff months before his budget address to discuss the role of DATCP in permitting the state’s largest livestock operations.

While it may sound logical for the state’s Ag department to permit agricultural operations, it is our state natural resource agency with the expertise and experience in protecting our rivers, lakes, and drinking water from industrial pollution. We can’t lose sight of the fact that we are ultimately talking about water: how our water is used, what happens to dirty and contaminated water, and how that impacts our health and the health of our environment.

Midwest Environmental Advocates has gotten a lot of questions about what this feasibility study and any proceeding permitting changes might mean for Wisconsinites. However, unanswered questions remain, which need our government must address even before deciding on doing a feasibility study that will cost taxpayers’ money and state agency staff time and resources.

Here is what we know about existing laws that apply to Wisconsin CAFOs and permitting government agencies:

  1. The U.S. Environmental Protection Agency must first review and approve the shift of permitting from the DNR to DATCP.

Under the federal Clean Water Act, the DNR’s authority to issue water pollution permits to CAFOs, as well as other industries, is a delegated power from the EPA to the state and is dependent upon a memorandum of understanding between DNR and EPA. Midwest Environmental Advocates has questions about when and how the State will seek federal guidance on whether or not DATCP can issue water pollution permits and maintain compliance with the Clean Water Act.

Yes, other states have departments of agriculture with primary or large responsibility over CAFO permitting. However, Wisconsin’s proposal to shift a CAFO program that is well-established at the DNR is a different scenario. The protection of water quality is not cleanly built into DATCP’s mission, which prioritizes growth of our State’s economy. In contrast, DNR’s mission of protecting water and other air resources lends itself to a permitting program that allows our State and the DNR expert staff to implement keystone federal laws like the Clean Water Act.

Because of the importance of our state’s compliance with the Clean Water Act, it is critical for the EPA and the two state agencies to first take a hard look at their missions and purpose before making this move. The public and state leaders should question whether a feasibility study is a good use of taxpayer dollars and agency staff time.

  1. Rulemaking changes take time – and a change in permitting from DNR to DATCP will shift today’s water pollution problems well into the future.

The DNR’s analysis of its own rulemaking processes shows that non-emergency rulemaking takes years to complete. The DNR has already begun the process of revising rules that would better protect sensitive areas in Wisconsin from CAFO and smaller farm pollution, and the public is working hard to ensure that those changes prioritize the health of people and our environment.

Changing the permitting process from one agency to another could result in a years-long legislative stalemate. It doesn’t take a study to know that the move would take more time and more resources than simply making a decision today to fund the experts at our DNR to effectively curb water pollution from CAFOs. The proposed study only distracts attention and resources away from real problems that need meaningful and immediate action by the state agency with the expertise to protect our environment.    

  1. The Public Trust Doctrine delegates protection of Wisconsin’s public trust waters to the DNR.

Proposing a study of how we would need to change our state laws as a result of this permitting shift misses a pillar of water quality and quantity protection: the Public Trust Doctrine. This Doctrine is built into our state Constitution, not just our laws or legal decisions; and it entrusts protection of public trust waters to the DNR. The feasibility study as proposed in the Governor’s budget fails to make transparent to the public the magnitude of what DATCP permitting of CAFOs would mean for water protection in Wisconsin. The history of the State’s protection of water resources through delegated authority to the DNR has taken many generations to establish and clarify. As recently as 2011, major environmental legal decisions confirmed that the DNR has a comprehensive, dominant role in protecting Wisconsin’s public trust waters.

Because protecting the quality of our state’s water is what is truly at the center of permitting agricultural operations, there’s no room in a responsible budget for a proposal that would likely disturb the trust that Wisconsinites place in the DNR to protect our State’s public trust waters.

Midwest Environmental Advocates will continue to closely follow the proposed feasibility study and any action that follows.

 

/ tagged: government, drinking water, rural, agriculture, water, public trust doctrine