Wisconsin Dairy Alliance Inc. v. Wisconsin Department of Natural Resources

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 27, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP458 Cir. Ct. No. 2023CV66

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

WISCONSIN DAIRY ALLIANCE INC. AND VENTURE DAIRY
COOPERATIVE,

PLAINTIFFS-APPELLANTS,

V.

WISCONSIN DEPARTMENT OF NATURAL RESOURCES AND WISCONSIN
NATURAL RESOURCES BOARD,

DEFENDANTS-RESPONDENTS,

WISCONSIN FARMERS UNION AND CLEAN WISCONSIN,

INTERVENORS-RESPONDENTS.

APPEAL from an order of the circuit court for Calumet County:
CAREY J. REED, Judge. Affirmed.

Before Neubauer, P.J., Gundrum, and Grogan, JJ.
No. 2024AP458

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Wisconsin Dairy Alliance Inc. and Venture Dairy
Cooperative (collectively, “WDA”) appeal an order of the circuit court that
dismissed their declaratory action seeking to invalidate two administrative rules
found in WIS. ADMIN. CODE ch. NR 243 (Nov. 2024).1 On appeal, WDA argues
the rules exceed the agency’s statutory authority and conflict with state law. We
conclude the rules are lawful and affirm.

BACKGROUND

¶2 WDA filed a declaratory action against the Wisconsin Department of
Natural Resources and the Wisconsin Natural Resources Board (collectively,
DNR), seeking to invalidate two DNR rules relating to large concentrated animal
feeding operations (“CAFOs”)2 and Wisconsin Pollutant Discharge Elimination
System (“WPDES”) permits. One rule generally requires an owner of a large
CAFO that stores manure or process wastewater at or below grade or land applies
manure or process wastewater to have a WPDES permit. See WIS. ADMIN. CODE
§ NR 243.11(3). The other rule, a definition, defines “[a]gricultural storm water
discharge” in a way that, according to WDA, also requires an owner of a large
CAFO to have a WPDES permit. See WIS. ADMIN. CODE § NR 243.03(2). In its
complaint, WDA alleged the rules were unlawful because they exceeded the
DNR’s statutory authority and conflicted with state law.

1
All references to WIS. ADMIN. CODE ch. NR 243 are to the November 2024 Register.
2
A “Large CAFO” is “an animal feeding operation that has 1,000 animal units or more
at any time.” WIS. ADMIN. CODE § NR 243.03(31).

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¶3 The DNR disputed WDA’s allegations. The Wisconsin Farmers
Union and Clean Wisconsin (collectively, WFU) intervened into the action and
generally aligned themselves with the DNR. WDA and the DNR filed cross-
motions for summary judgment. WFU filed a brief in support of the DNR’s
summary judgment motion and in opposition to WDA’s summary judgment
motion. Following a hearing, the circuit court determined the rules did not exceed
the DNR’s statutory authority and did not conflict with state law. It granted
judgment in favor of the DNR, and it dismissed WDA’s declaratory action. WDA
appeals.

DISCUSSION

¶4 As a threshold matter, both the DNR and WFU argue, as they did in
the circuit court, that we need not reach the merits of WDA’s claims on the basis
that WDA has failed to establish any injury or harm from the challenged rules.
Therefore, as argued by the DNR, WDA lacks standing to challenge the rules, see
Friends of Black River Forest v. Kohler Co., 2022 WI 52, ¶¶20-23, 402 Wis. 2d
587, 977 N.W.2d 342, and, as argued by WFU, this declaratory action is not
properly before the court because WDA failed to satisfy three of the four
justiciable factors (failure to state a claim, standing, and ripeness), see Loy v.
Bunderson, 107 Wis. 2d 400, 410, 320 N.W.2d 175 (1982). WDA replies that it
established injury. Because we ultimately agree with the DNR and WFU that, on
the merits, the challenged rules do not exceed the DNR’s statutory authority and
do not conflict with state law, we do not address the DNR’s and WFU’s standing
and justiciable arguments. See State v. Blalock, 150 Wis. 2d 688, 703, 442
N.W.2d 514 (Ct. App. 1989) (cases decided on narrowest possible ground).

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¶5 On the merits, and in order to put WDA’s arguments into context,
we begin with a discussion of federal and state water pollution control programs,
related state water protection statutes and regulations, CAFOs, and the rulemaking
process for the challenged rules at issue in this case. We then turn to WDA’s
arguments regarding the validity of the rules.

I. Federal and state water pollution control programs and related state
water protection statutes and regulations

¶6 Congress enacted the Clean Water Act with the “goal that the
discharge of pollutants into the navigable waters be eliminated[.]” 33 U.S.C.
§ 1251(a)(1). To achieve that goal, Congress established a system whereby point
sources,3 including CAFOs, could not discharge pollutants into waters of the
United States without a National Pollution Discharge Elimination System
(NPDES) permit. See 33 U.S.C. §§ 1311(a), 1342, 1362. Congress conferred
NPDES permitting authority to the Environmental Protection Agency (EPA).
Sec. 1342(a).

¶7 The EPA is permitted to delegate its authority to a state agency so
long as the state program imposes standards at least as stringent as those of the
federal program. 33 U.S.C. § 1342(b). State programs, however, may impose
more stringent requirements. Niagara of Wis. Paper Corp. v. DNR, 84 Wis. 2d

3
The term “point source” is defined to mean “any discernible, confined and discrete
conveyance ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). Notably,
the Clean Water Act includes “concentrated animal feeding operation” as an example of a point
source. Id. Wisconsin similarly defines a “[p]oint source” as “[a] discernible, confined, and
discrete conveyance, including … [a] concentrated animal feeding operation, … from which
pollutants may be discharged … into the waters of the state.” WIS. STAT. § 283.01(12)(a) (2023-
24).

All references to the Wisconsin Statutes are to the 2023-24 version.

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32, 38, 268 N.W.2d 153 (1978). The EPA has allowed Wisconsin to administer its
own permitting scheme since 1974. See Andersen v. DNR, 2011 WI 19, ¶37, 332
Wis. 2d 41, 796 N.W.2d 1; see also 33 U.S.C. § 1342(b); WIS. STAT. ch. 283.

¶8 Wisconsin’s permitting program, WPDES, is found in WIS. STAT.
ch. 283. As a whole, chapter 283 “espouses a very similar objective to that of the
Clean Water Act.” Andersen, 332 Wis. 2d 41, ¶43 (citing WIS. STAT.
§ 283.001(1)). To effectuate the policy in ch. 283, the Legislature granted to the
DNR “all authority necessary to establish, administer and maintain a state
pollutant discharge elimination system ... consistent with all the requirements of
the [Clean Water Act].” Sec. 283.001(2). WISCONSIN STAT. § 283.31(1) prohibits
“[t]he discharge of any pollutant into any waters of the state … unless such
discharge … is done under a [WPDES] permit issued by the department under this
section or [WIS. STAT. §] 283.33 [storm water discharge permits].”

¶9 The DNR is also charged with “promulgat[ing] rules relating to
applications for permits … which shall require at a minimum that every owner or
operator of a point source discharging pollutants into waters of the state shall have
on file … a completed permit application[.]” WIS. STAT. § 283.37(1). Permits last
five years. WIS. STAT. § 283.53(1). An application to reissue a permit must be
filed 180 days before expiration. Sec. 283.53(3)(a). Similarly, applications for a

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WPDES permit from a new source must be submitted not later than 180 days
before discharging. Sec. 283.37(2).4

¶10 The Legislature also outlined statutory conditions under which the
DNR “may,” and “shall” not, issue WPDES permits. WIS. STAT. § 283.31(2)-(3).
Broadly, any WPDES permit must meet all of the following conditions:

(a) Effluent limitations.

(b) Standards of performance for new sources.

(c) Effluent standards, effluents prohibitions and
pretreatment standards.

(d) Any more stringent limitations, including those:

1. Necessary to meet federal or state water quality
standards, or schedules of compliance established by the
department; or

2. Necessary to comply with any applicable federal law or
regulation; or

3. Necessary to avoid exceeding total maximum daily loads
established pursuant to a continuing planning process
developed under [WIS. STAT. §] 283.83.

4
WISCONSIN STAT. § 283.37(2) provides:

Any owner or operator of a point source for which a permit is
required by [WIS. STAT. §] 283.31(1) wishing to commence
discharging pollutants into state waters from a new source, the
construction of which commenced after July 22, 1973, shall
submit a completed application not later than 180 days prior to
the date on which it is desired to commence discharges.

“Construction” as used in WIS. STAT. § 283.37(2) means “any placement, assembly or
installation of facilities or equipment, including contractual obligations to purchase such facilities
or equipment, at the premises where such equipment will be used, including preparation work at
such premises.” WIS. STAT. § 283.01(2).

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(e) Any more stringent legally applicable requirements
necessary to comply with an approved areawide waste
treatment management plan.

(f) Groundwater protection standards established under
[WIS. STAT.] ch. 160.

Sec. 283.31(3). The DNR must also prescribe conditions for WPDES permits “to
assure compliance” with the Legislature’s statutory permit requirements.
Sec. 283.31(3)-(5); see also Clean Wis., Inc. v. DNR (“Clean Water I”), 2021 WI
71, ¶40, 398 Wis. 2d 386, 961 N.W.2d 346 (Sec. 283.31(3)-(5) and related
regulations give the DNR explicit authority to impose conditions on WPDES
permits).

¶11 Outside of WIS. STAT. ch. 283’s “PERMITS” subchapter, in
ch. 283’s “STANDARDS; EFFLUENT LIMITATIONS” subchapter, the DNR is
additionally charged with promulgating rules on effluent limitations,5 standards of
performance for new sources,6 and other effluent prohibitions and pretreatment
standards. WIS. STAT. § 283.11(1). Section 283.11(2), which WDA refers to as
the uniformity mandate, provides generally that rules must comply with and not
exceed the requirements of the Clean Water Act and associated federal
regulations.

¶12 Wisconsin’s WPDES permit program is broader than the Clean
Water Act. Maple Leaf Farms, Inc. v. DNR., 2001 WI App 170, ¶10, 247
5
An “[e]ffluent limitation” is “any restriction established by the department, including
schedules of compliance, on quantities, rates, and concentrations of chemical, physical,
biological, and other constituents which are discharged from point sources into waters of this
state.” WIS. STAT. § 283.01(6).
6
A “[n]ew source” is generally “any point source the construction of which commenced
after the effective date of a standard of performance under 33 USC 1316 that is applicable to the
point source.” WIS. STAT. § 283.01(8)(a).

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Wis. 2d 96, 633 N.W.2d 720. The Clean Water Act does not provide regulatory
protection for groundwater. Id. However, Wisconsin’s WPDES program applies
to “[w]aters of the state,” which includes groundwater. See WIS. STAT.
§§ 283.01(20); 283.31(1). Further, as noted above, the Legislature has mandated
that any WPDES permit incorporate Wisconsin’s “[g]roundwater protection
standards established under [WIS. STAT.] ch. 160.” Sec. 283.31(3)(f).

¶13 In WIS. STAT. ch. 160, “The Legislature gave the DNR broad
authority to establish, monitor, and enforce health-based groundwater standards …
which resulted in the promulgation of WIS. ADMIN. CODE ch. NR 140.” Clean
Wisconsin I, 398 Wis. 2d 386, ¶30. “Chapter 140 contains the State’s
groundwater standards and provides that the DNR ‘may take any actions within
the context of regulatory programs established in statutes or rules outside of this
chapter, if those actions are necessary to protect public health and welfare or
prevent a significant damaging effect on groundwater or surface water quality.’”
Id. (quoting WIS. ADMIN. CODE § NR 140.02(4)). “Chapter 140 applies to all
facilities regulated by WIS. STAT. ch. 283.” Id. (citing WIS. ADMIN. CODE
§ NR 140.03).

¶14 Also relevant is WIS. STAT. ch. 281. There, the Legislature “granted
the DNR the ‘necessary powers’ to enhance the ‘quality management and
protection of all waters of the state’ against ‘all present and potential sources of
water pollution.’” Clean Wis., Inc. v. DNR (“Clean Wisconsin II”), 2021 WI 72,
¶13, 398 Wis. 2d 433, 961 N.W.2d 611 (quoting WIS. STAT. § 281.11). More
specifically, the Legislature delegated supervision and control over waters of the
state to the DNR. Id. (citing WIS. STAT. § 281.12(1)). This delegation of
authority was broad but explicit. Sec. 281.12; Clean Wisconsin II, 398 Wis. 2d
433, ¶25 (“The text of § 281.12 explicitly requires the DNR to ‘carry out the

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planning, management[,] and regulatory programs necessary’ to achieve the
purpose of ch. 281.”). WISCONSIN STAT. ch. 281 further directs the DNR to
formulate “plans and programs for the prevention and abatement of water
pollution.” Sec. 281.12(1).

II. CAFOs and WIS. ADMIN. CODE ch. NR 243

¶15 In 2007, pursuant to the statutory authority in “[WIS. STAT.] chs. 281
and 283,” the DNR promulgated WIS. ADMIN. CODE ch. NR 243 to, in part,
“establish permit requirements and the basis for issuing permits to CAFOs.” WIS.
ADMIN. CODE § NR 243.01(1). CAFOs are “‘a specific type of large-scale
industrial agricultural facility that raises animals, usually at high-density, for the
[production] of meat, eggs, or milk.’” Clean Wisconsin I, 398 Wis. 2d 386, ¶18
(citation omitted). “Due to their size, CAFOs produce as much manure—waste—
as do small and medium-size cities.” Id. CAFOs are statutorily required to apply
to the DNR for a WPDES permit before discharging pollutants because they are
“[p]oint source[s]” as defined in WIS. STAT. § 283.01(12). See also WIS. STAT.
§§ 283.31(1); 283.37.

¶16 During the rulemaking proceedings for WIS. ADMIN. CODE
ch. NR 243, the DNR convened a Technical Advisory Committee to assess the
proposed rules’ practical viability. The committee consisted of state and federal
agency experts and interested persons and groups, including representatives of
CAFOs. Based on its scientific review and input from the committee members,
the DNR found that “current science supports that all manure or process
wastewater storage systems leak some pollutants to groundwater, and that land
application of manure or process wastewater will result in a discharge of pollutants
to groundwater.” The DNR ultimately concluded that “all large CAFOs that land

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apply manure or process wastewater or that have storage structures at or below
grade have actual discharges.” (Emphasis added.)

¶17 Based on the factual record, the DNR promulgated WIS. ADMIN.
CODE § NR 243.11(3), which provides:

(a) Except as provided in par. (b), any person owning or
operating a large CAFO that stores manure or process
wastewater in a structure that is at or below grade or that
land applies manure or process wastewater shall have a
WPDES permit. A discharge of pollutants from manure or
process wastewater to waters of the state by an unpermitted
animal feeding operation with 1,000 animal units or more is
prohibited. A pasture or grazing area may operate without
WPDES permit coverage.

(b) If a person owns or operates an animal feeding
operation with 999 animal units or less, and that person
expands its operation to 1000 animal units or more due to
the purchase of another animal feeding operation, that
person has 90 days from the date of the purchase to apply
for a WPDES permit.

Id. The large-CAFO-permit rule is the first challenged rule.

¶18 The DNR also promulgated definitions that “are applicable to terms
used in this chapter.” WIS. ADMIN. CODE § NR 243.03. It defined “Agricultural
storm water discharge” to mean:

(a) For unpermitted animal feeding operations with 300 to
999 animal units, a precipitation-related discharge of
manure or process wastewater pollutants to surface waters
from a land application area that may occur after the owner
or operator of the animal feeding operation has land applied
manure or process wastewater in compliance with a
nutrient management plan that meets the nutrient
management requirements of this chapter; and

(b) For permitted CAFOs, a precipitation related discharge
of manure or process wastewater pollutants to surface
waters from a land application area that may occur after the
owner or operator of the CAFO has land applied the
manure or process wastewater in compliance with the

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nutrient management requirements of this chapter and the
terms and conditions of its WPDES permit.

Sec. NR 243.03(2). The definition—specifically, subsection (b)’s reference to
permits is the second challenged rule.

III. Validity of the DNR’s rules

¶19 The issues on appeal concern the validity of WIS. ADMIN. CODE
§§ NR 243.11(3) (the large-CAFO-permit rule) and NR 243.03(2) (the
“[a]gricultural storm water discharge” definition). Pursuant to WIS. STAT.
§ 227.40(4)(a), a litigant may challenge the validity of an administrative rule on
one of three grounds—that the rule “violates constitutional provisions or exceeds
the statutory authority of the agency or was promulgated or adopted without
compliance with statutory rule-making or adoption procedures.” Id. In this case,
WDA argues that both rules exceed the DNR’s statutory authority and conflict
with state law. In its summary judgment motion, WDA also explicitly advised,
“[T]his lawsuit does not challenge the factual basis for the DNR rules at issue” or
assert that either rule includes a constitutional due process claim.

¶20 This Court “review[s] a grant of summary judgment de novo.”
Munger v. Seehafer, 2016 WI App 89, ¶46, 372 Wis. 2d 749, 890 N.W.2d 22.
Summary judgment is appropriate where “there is no genuine issue as to any
material fact and the moving party is entitled to a judgment as a matter of law.”
WIS. STAT. § 802.08(2). We also review de novo whether a rule exceeds an
agency’s statutory authority or conflicts with a statute. Debeck v. DNR, 172
Wis. 2d 382, 386, 493 N.W.2d 234 (Ct. App. 1992).

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A. Large-CAFO-permit rule

¶21 We begin with the rule that large CAFOs obtain a WPDES permit.
WDA argues this rule exceeds the DNR’s statutory authority in two ways. First, it
asserts the rule conflicts with state law, namely the “uniformity provision” found
in WIS. STAT. § 283.11(2)(a). See WIS. STAT. § 227.10(2) (“No agency may
promulgate a rule which conflicts with state law.”). Second, WDA argues this rule
is invalid because no statute “explicitly authorizes or requires the DNR to
‘promulgate rules’ to require operators or owners of certain point sources to obtain
WPDES permits.” We address each argument in turn.

1. Conflict with WIS. STAT. § 283.11(2)(a)

¶22 WDA argues the large-CAFO-permit rule is invalid because it
conflicts with state law, specifically the “uniformity provision” found in WIS.
STAT. § 283.11(2)(a). That statute provides:

Except for rules concerning storm water discharges for
which permits are issued under [WIS. STAT. §] 283.33
[storm water discharge permits], all rules promulgated by
the department under this chapter as they relate to point
source discharges, effluent limitations, municipal
monitoring requirements, standards of performance for new
sources, toxic effluent standards or prohibitions and
pretreatment standards shall comply with and not exceed
the requirements of the [Clean Water Act], and regulations
adopted under that act.

Id.

¶23 WDA argues the large-CAFO-permit rule was “promulgated …
under [WIS. STAT. ch. 283]” and “relate[s] to point source discharges,” as those
phrases are used in the uniformity provision, and therefore, as a threshold matter,
the rule is subject to the uniformity provision.

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¶24 WDA also asserts the rule “exceed[s] the requirements of the [Clean
Water Act] and regulations adopted under the act.” See WIS. STAT.
§ 283.11(2)(a). In support, WDA explains the EPA had a similar rule that
required CAFOs to obtain a NPDES permit if the farm was “constructed, operated,
and maintained in a manner such that the CAFO will discharge,” but the Fifth
Circuit invalidated that rule on the basis that the EPA did not have authority to
impose a duty to apply for a permit before there was a discharge or to impose
failure-to-apply liability. National Pork Producers Council v. EPA, 635 F.3d
738, 750-52 (5th Cir. 2011). WDA argues that “[i]n contrast to current federal
law,” the DNR’s large-CAFO-permit rule creates a “duty to apply” and
corresponding failure-to-apply liability. It asserts that failure-to-apply liability is
in addition to the liability that may be imposed on a large CAFO for an
unauthorized discharge. See WIS. STAT. § 283.91(2)-(3) (A person may be
prosecuted for any violation of WIS. STAT. ch. 283 or “any rule promulgated under
this chapter.”). Because this “duty to apply” and corresponding failure-to-apply
liability exceed federal law, WDA contends the uniformity provision should be
used to invalidate the DNR’s large-CAFO-permit rule.

¶25 Both the DNR and WFU initially respond, in part, that the
uniformity provision is inapplicable to the large-CAFO-permit rule because the
challenged rule does not “relate to point source discharges,” see WIS. STAT.
§ 283.11(2)(a), and the rule was promulgated under both WIS. STAT. chs. 281 and
283, WIS. ADMIN. CODE § NR 243.01(1). They explain the uniformity provision is
designed to apply to instances where the DNR has set numerical effluent limits or
similar requirements that are more stringent than federal standards. See, e.g.,
Wisconsin Elec. Power Co. v. DNR, 93 Wis. 2d 222, 243, 287 N.W.2d 113 (1980)
(under uniformity provision, state chlorine limitations needed to be modified to

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meet less stringent federal chlorine limitations); Maple Leaf, 247 Wis. 2d 96, ¶20
(“[U]niformity argument is most compelling for end-of-pipe discharges where the
EPA imposes specific discharge limits from defined categories of pollution
sources, such as paper mills and power plants.”).

¶26 The DNR and WFU also argue that the uniformity provision is
inapplicable to the large-CAFO-permit rule because WIS. ADMIN. CODE
§ NR 243.11(3) does not exceed any federal requirement. They argue the WPDES
program is broader and more stringent than federal law because it includes
protection for groundwater. They emphasize the rulemaking record established
the large-CAFO-permit rule was created because of large CAFOs’ actual
discharges into groundwater.

¶27 We do not resolve the dispute about whether the large-CAFO-permit
rule “relates to a point source discharge” or whether the fact it was promulgated
pursuant to authority given in WIS. STAT. chs. 281 and 283 limit the uniformity
provision’s application. Instead, we conclude the uniformity provision does not
limit the large-CAFO-permit rule because the rule does not exceed any federal
requirement. In Maple Leaf, 247 Wis. 2d 96, ¶16, we concluded the uniformity
provision applies to limit the DNR’s authority “only where the federal program
regulates the activity in question.” Here, WDA’s argument assumes the WPDES
permitting regime is identical to the Clean Water Act and associated regulations,
but, as we have already explained, Wisconsin’s water protection is broader than
the Clean Water Act because it includes protection for groundwater. See id., ¶10.

¶28 The rulemaking record included in this case reveals the DNR’s
large-CAFO-permit rule was promulgated to protect Wisconsin’s groundwater.
The Clean Water Act does not regulate groundwater. Id., ¶10. Because the

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federal program does not regulate groundwater protection, the DNR’s
large-CAFO-permit rule does not conflict with the uniformity provision in WIS.
STAT. § 283.11(2)(a). See Maple Leaf, 247 Wis. 2d 96, ¶21 (Because the federal
program did not regulate the activity in question, “the uniformity provision is not
relevant to our statutory analysis” of whether the DNR had statutory authority to
pass the rule). We therefore reject WDA’s argument that the large-CAFO-permit
rule exceeds the DNR’s statutory authority because it conflicts with state law,
namely the uniformity provision in § 283.11(2)(a).

¶29 Moreover, we disagree with WDA that, because the federal courts
prohibit the EPA from adopting a rule that creates a duty to apply before
discharging and corresponding “failure-to-apply” liability, that the DNR is subject
to a similar limitation. As the DNR points out, WIS. STAT. § 283.37(2) requires a
point source to apply for a WPDES permit at least 180 days before it discharges a
pollutant. Similarly, applications to reissue a permit must be filed 180 days before
expiration. WIS. STAT. § 283.53(3)(a). Any duty to apply before discharging and
corresponding failure-to-apply liability exists within the statutory scheme itself
and was not created simply by the DNR’s large-CAFO-permit rule.

2. Statutory Authority

¶30 We now turn to whether the DNR has statutory authority to
promulgate the large-CAFO-permit rule. WDA’s appellate argument focuses on
WIS. STAT. § 283.001. WDA argues it was error of the circuit court to rely on
§ 283.001 as authority for the DNR rule because § 283.001 describes the
Legislature’s statement of policy and purpose in enacting chapter 283 as well as
the DNR’s general duties under the chapter. WPA observes that under 2011 Wis.
Act 21 (“Act 21”), the Legislature amended WIS. STAT. ch. 227, in part, to

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eliminate implied agency authority and to prohibit agency rulemaking without
explicit authority. See WIS. STAT. § 227.11(2)(a)1.-2. WDA asserts WIS. STAT.
§ 283.001 provides no rulemaking authority and “[t]he circuit court … did not
identify any statute that explicitly authorizes or requires the DNR to ‘promulgate
rules’ to require operators or owners of certain point sources to obtain WPDES
permits.”

¶31 WFU responds that WDA is attempting to use Act 21’s revisions to
narrow the DNR’s rulemaking authority in a way that “retroactively, renders this
2007 rulemaking invalid by taking any reliance on WIS. STAT. § 283.001 off the
table.” Alternatively, WFU and the DNR contend that WDA’s sole focus on
§ 283.001 ignores other statutory provisions found in WIS. STAT. chs. 283, 281,
and 160 that confer broad authority on the DNR and authorize it to promulgate
rules necessary to prevent pollution from reaching groundwater. WFU and the
DNR provide an overview of various statutes and explain why each provides
statutory authority for the DNR’s large-CAFO-permit rule.

¶32 At the outset, we are uncertain of the interplay between the
challenged rule, which the parties advise was promulgated in 2007 and remains
unchanged, and WIS. STAT. § 227.11(2)(a)1.-2. After all, Act 21, § 9355, provides
“The renumbering and amendment of section 227.11(2)(a) of the statutes and the
creation of section 227.11(2)(a)1. to 3. of the statutes first apply to a proposed
administrative rule submitted to the legislative counsel staff under [WIS. STAT.
§] 225.15 of the statutes on the effective date of this subsection.” (Emphasis
added.) Here, Act 21 became effective in 2011, but the challenged rule was
promulgated in 2007.

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¶33 In any event, we need not resolve this uncertainty because we agree
with the DNR and WFU that, as explained below, the DNR had explicit statutory
authority to promulgate the large-CAFO-permit rule. Although the DNR and
WFU offer and analyze multiple statutes in WIS. STAT. chs. 283, 281, and 160,
which they assert authorize the DNR to promulgate this rule, our focus need go no
further than WIS. STAT. § 283.37.

¶34 When determining whether the Legislature gave express authority
for a rule, we identify the elements of the enabling statute and match the rule
against those elements. See Wisconsin Ass’n of State Prosecutors v. WERC,
2018 WI 17, ¶39, 380 Wis. 2d 1, 907 N.W.2d 425. This is known as the elemental
approach. Id. If the rule matches the statutory elements, then the statute expressly
authorizes the rule. Id. However, “the enabling statute need not spell out every
detail of the rule. If it did, no rule would be necessary.” Id., ¶38 (citation
omitted).

¶35 Under the elemental approach, we conclude the DNR had explicit
statutory authority to promulgate WIS. ADMIN. CODE § NR 243.11(3). WISCONSIN
STAT. § 283.37(1) unambiguously directs the DNR to “promulgate rules relating to
applications for permits” requiring “at a minimum” that any discharging point
source have a completed WPDES application on file. CAFOs are point sources.
WIS. STAT. § 283.01(12)(a). During the 2007 rulemaking proceedings, the DNR
determined large CAFOs discharge to the groundwater. The DNR then
promulgated a rule requiring large CAFOs to have a WPDES permit. See
§ NR 243.11(3). We reject WDA’s argument that § NR 243.11(3) exceeds the
DNR’s statutory authority.

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No. 2024AP458

B. “Agricultural storm water discharge” definition

¶36 We now turn to the second challenged rule, the DNR’s definition of
agricultural storm water discharge. As stated above, the DNR defined,
“Agricultural storm water discharge,” as used in WIS. ADMIN. CODE ch. 243, to
mean:

(a) For unpermitted animal feeding operations with 300 to
999 animal units, a precipitation-related discharge of
manure or process wastewater pollutants to surface waters
from a land application area that may occur after the owner
or operator of the animal feeding operation has land applied
manure or process wastewater in compliance with a
nutrient management plan that meets the nutrient
management requirements of this chapter; and

(b) For permitted CAFOs, a precipitation related discharge
of manure or process wastewater pollutants to surface
waters from a land application area that may occur after the
owner or operator of the CAFO has land applied the
manure or process wastewater in compliance with the
nutrient management requirements of this chapter and the
terms and conditions of its WPDES permit.

WIS. ADMIN. CODE § NR 243.03(2). WDA argues the DNR’s definition is “too
narrow[]” because the definition requires a large CAFO to “have and comply with
a WPDES permit for any of its run-off to qualify as an agricultural storm water
discharge.” It asserts this definition exceeds the DNR’s statutory authority
because it conflicts with the “statutory permitting and liability exemption” in WIS.
STAT. §§ 283.01(12) and 283.31(1). Alternatively, WDA argues the definition
conflicts with another uniformity mandate, this one found in WIS. STAT.
§ 283.11(2)(b), which we will call the “stringency provision.” 7

7
WDA advises that it is not arguing “this rule lacks explicit statutory authority as
required by WIS. STAT. § 227.11(2)(a)1. and 2.”

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No. 2024AP458

1. Conflict with WIS. STAT. §§ 283.01(12) and 283.31(1)

¶37 As stated previously, CAFOs are statutorily required to apply to the
DNR for a WPDES permit before discharging pollutants because they are “[p]oint
source[s]” as defined in WIS. STAT. § 283.01(12). See also WIS. STAT.
§§ 283.31(1); 283.37. An “agricultural storm water discharge” is excluded from
the definition of a point source. Sec. 283.01(12). WDA explains an “agricultural
storm water discharge” is deemed a nonpoint source discharge. It states a
nonpoint source discharge is “exempt from … WPDES permitting requirements
and from liability for point source discharges.”

¶38 On appeal, WDA argues the DNR’s definition of “[a]gricultural
storm water discharge” conflicts with WIS. STAT. §§ 283.01(12) and 283.31(1)
because the definition requires a large CAFO to obtain a WPDES permit to
receive liability exemption for its nonpoint source discharges. WDA also objects
to the fact that the DNR’s definition of agricultural storm water discharge only
discusses “precipitation-related discharge[s] … to surface waters” and does not
discuss precipitation-related discharges to groundwater. See WIS. ADMIN. CODE
§ NR 243.03(2). It asserts both are nonpoint source discharges.

¶39 The DNR and WFU respond that the definition does not conflict
with any statutory liability exemption for agricultural storm water discharges.
They argue that the definition merely reflects that, pursuant to the large-CAFO-
permit rule (which we have already deemed lawful), a large CAFO will have a
WPDES permit. The DNR also argues it is erroneous for WDA to assert that a
CAFO is exempt from liability for nonpoint source discharges. It asserts:

the statutes do not “eliminate liability” for nonpoint source
pollution—to the contrary, there exists an entire body of

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No. 2024AP458

statu[t]es and regulations governing agricultural nonpoint
source pollution.

See, e.g., WIS. STAT. § 281.16(3); WIS. ADMIN. CODE §§ NR 151.01-097.

¶40 In reply, WDA agrees with the DNR regarding nonpoint source
discharge liability but argues the definition makes a large CAFO liable for a
nonpoint source discharge under the point-source regulatory regime.

¶41 We do not perceive a conflict between the DNR’s definition of
“[a]gricultural storm water discharge” and WIS. STAT. §§ 283.01(12) or 283.31(1).
We also do not agree with WDA that the definition’s reference to permitted
CAFOs somehow creates “point source discharge” liability for a large CAFO’s
“nonpoint source discharges.” Instead, we agree with the DNR and WFU that the
definition merely reflects that large CAFOs will have a WPDES permit. The
definition does not create an independent permit requirement. The
large-CAFO-permit rule is found in WIS. ADMIN. CODE § NR 243.11(3) and we
have already determined that provision is valid.

2. Conflict with WIS. STAT. § 283.11(2)(b)

¶42 WDA then argues the definition conflicts with the stringency
provision found in WIS. STAT. § 283.11(2)(b). The stringency provision provides:
“Rules concerning storm water discharges may be no more stringent than the
requirements under the [Clean Water Act], and regulations adopted under that
act.” Id.

¶43 WDA argues the stringency provision applies to limit the DNR’s
definition of “[a]gricultural storm water discharge” because it is a rule concerning
“storm water discharges,” and the rule is “more stringent” than the Clean Water

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No. 2024AP458

Act. WDA asserts federal law does not require a farm to have NPDES permit for
its run-off to qualify as an agricultural storm water discharge and be exempt from
liability.

¶44 The DNR and WFU both respond WDA’s reliance on the stringency
provision is entirely misplaced. They argue the term “storm water discharges” as
used in the stringency provision does not include “agricultural storm water
discharges.” They explain storm water discharges are regulated by an entirely
different regulatory scheme, WIS. STAT. § 283.33. According to WFU, under the
storm water discharge regime, the DNR has promulgated a different administrative
chapter, WIS. ADMIN. CODE ch. NR 216. The stringency provision operates to
ensure these “[r]ules concerning storm water discharges may be no more
stringent” than federal requirements. See WIS. STAT. § 283.11(2)(b). As further
support, WFU explains § 283.33 (storm water discharges) and WIS. STAT.
§ 283.11(2)(b) (stringency provision) were created at the same time in response to
changes in the federal storm water discharge permit program.8

¶45 In any event, WFU and the DNR argue that even if the DNR’s
definition of “agricultural storm water discharges” was “a rule concerning storm
water discharges,” the definition is not more stringent than the federal standard
because it places no additional burdens on large CAFOs. They explain that,
because the large-CAFO-permit rule in WIS. ADMIN. CODE § NR 243.11(3) is

8
See 1993 Wis. Act 16, §§ 2605 (creating WIS. STAT. § 147.021 “Storm water discharge
permits”) and 2616 (creating WIS. STAT. § 147.035(2)(b) “Rules concerning storm water
discharges may be no more stringent than the requirements under the [Clean Water Act], and
regulations adopted under that act.”).

In 1996, WIS. STAT. § 147.021 was renumbered to WIS. STAT. § 283.33 and WIS. STAT.
§ 147.035(2)(b) was renumbered to WIS. STAT. § 283.11(2)(b). 1995 Wis. Act 227, §§ 852, 859.

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No. 2024AP458

lawful, the definition of “agricultural storm water discharge” merely recognizes
that a large CAFO will have a permit.

¶46 We agree. First, we are not convinced that a rule concerning an
“agricultural storm water discharge” is the same as a rule concerning a “storm
water discharge” such that the stringency provision in WIS. STAT. § 283.11(2)(b)
applies. However, we need not resolve this uncertainty because we conclude the
definition is not more stringent than any federal requirement—the definition
simply reflects the reality that, given WIS. ADMIN. CODE § NR 243.11(3), all large
CAFOs will have a WPDES permit.

¶47 Because we conclude the two challenged rules do not conflict with
state statutes and do not exceed the DNR’s statutory authority, we affirm the
circuit court’s order granting summary judgment in favor of the DNR and
dismissing WDA’s declaratory action.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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