New Chester Dairy, Inc. v. DNR

In New Chester Dairy, Great Lakes Legal Foundation participated on behalf of intervenors Wisconsin Manufacturers and Commerce, Dairy Business Association, Midwest Food Processors and Wisconsin Potato & Vegetable Growers Association. This case involved invalid permit conditions imposed on New Chester Dairy.

Judge Mark McGinnis of the Outagamie Circuit Court issued his decision and order on December 2, 2015, consistent with GLLF’s position. The court held DNR did not have explicit authority to place the monitoring well conditions in New Chester Dairy permits. The court held that Wis. Stat. § 227.10(2m) precludes  DNR reliance on any “implied authority” to impose conditions on permits.

Key Documents
Outagamie Circuit Court Decision and Order (Dec. 2, 2015)
Great Lakes Legal Foundation Press Release (Nov. 12, 2015)
Great Lakes Legal Foundation Reply Brief (July 27, 2015)
Great Lakes Legal Foundation Opening Brief (April 6, 2015)

Backgound
In the spring of 2012, New Chester Dairy (New Chester) sought approval by DNR to modify its Wisconsin Pollutant Discharge Elimination System (WPDES) permit to increase groundwater withdrawals to accommodate an expansion in the number of cows at the facility. During the modification process, DNR notified New Chester that this increased withdrawal may impact Patrick Lake in Adams County. New Chester offered to find a more appropriate site to place the wells to mitigate or eliminate the impact on surface water if necessary. After a comment period DNR conditioned the approval of the modification on New Chester installing groundwater monitoring wells at three different locations to collect and compile certain data from the wells and provide it to DNR. New Chester objected to the imposition of these conditions and requested a contested case hearing.

New Chester sought review of the Monitoring and Reporting Condition and was granted a contested case hearing. New Chester and DNR both filed motions for summary judgment. New Chester’s motion was denied and DNR’s motion, arguing that it had authority to impose the condition, was granted. The ALJ’s Finding of Fact, Conclusions of Law, and Order further affirmed that DNR has a general duty and authority, under the public trust doctrine through Wis. Stat. §§ 281.11 and 281.12, to impose the condition in the permit modification to protect the waters of the state and that the condition was reasonable and supported by substantial evidence. New Chester appealed to the Outagamie County Circuit Court. Where the case currently sits.

New Chester and the Great Lakes Legal Foundation have submitted their opening briefs in the case. Clean Wisconsin, another intervenor, has submitted its Reply Brief. The Department of Justice, currently representing DNR, has requested a temporary stay of the briefing schedule which Outagamie County Judge McGinnis has granted.

During the time in which the briefing schedule was stayed the Wisconsin Department of Justice has refused to continue to represent DNR. Governor Walker has given DNR permission to represent themselves through their agency counsel, and DNR has decided not to file a response brief. The Great Lakes Legal Foundation filed its reply brief to Clean Wisconsin on Friday, July 25th.

Other Documents
Outagamie Circuit Court Hearing Transcript (Nov. 12, 2015)
New Chester Dairy Reply Brief (July 27, 2015)
Clean Wisconsin Response Brief (May 28, 2015)
New Chester Dairy Opening Brief (April 1, 2015)
Court Grants Businesses’ Request to Join Lawsuit to Stop DNR’s Effort to Impose Unlawful Permit Conditions Press Release, Great Lakes Legal Foundation (Feb. 19, 2015)
Great Lakes Legal Foundation Reply Brief to Response Briefs of WDNR and Clean Wisconsin in Opposition to Motion to Intervene (Feb. 2, 2014)
Clean Wisconsin Brief in Opposition to Motion to Intervene (Dec. 19, 2014)
WDNR’s Brief in Opposition to Motion to Intervene (Dec. 4, 2014)
Great Lakes Legal Foundation Brief in Support of Motion to Intervene in New Chester Dairy v. Wisconsin Department of Natural Resources and Clean Wisconsin (Nov. 10, 2014)
Department of Natural Resources is Violating 2011 Act 21 by Imposing Unlawful Conditions for High Capacity Well Permits


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