Judge tosses out DNR per­mits for large wells

Milwaukee Journal Sentinel - - NEWS - LEE BERGQUIST

A Dane County judge ruled this week that the Depart­ment of Nat­u­ral Re­sources must take into ac­count the cu­mu­la­tive im­pacts of high-ca­pac­ity wells on other water re­sources in cases where she in­val­i­dated seven per­mits ap­proved by the agency last year.

In a closely watched case, the judge said Wed­nes­day the DNR had am­ple author­ity to set lim­its on well ap­pli­ca­tions to pro­tect drink­ing water sup­plies and lakes and streams that might be im­per­iled by heavy water use.

The case high­lights a longs-tand­ing con­tro­versy over high-ca­pac­ity wells and their im­pact on wa­ter­ways and aquatic life, es­pe­cially in cen­tral Wis­con­sin, where there is heavy ground­wa­ter use by veg­etable grow­ers.

Ground­wa­ter in the re­gion is also a source of water for lakes, rivers, streams and wet­lands.

In the case of some well per­mits, court records show that DNR staff ex­pressed reser­va­tions to su­pe­ri­ors about grant­ing a new per­mit to pump more water from aquifers.

The rul­ing comes af­ter a ma­jor pol­icy shift last year by the DNR, when of­fi­cials said they would no longer take into ac­count the com­pound­ing ef­fects that large wells can have on nearby lakes and streams when re­view­ing per­mits.

The DNR changed its stance af­ter At­tor­ney Gen­eral Brad Schimel, a Re­pub­li­can, said in a le­gal opin­ion that the agency did not have the author­ity to place con­di­tions on farms and oth­ers de­vel­op­ing large wells — even if the wells could harm state wa­ters.

Schimel said that a 2011 law pro­hibits state agen­cies such as the DNR from plac­ing con­di­tions on peo­ple and busi­nesses un­less it is spelled out in state law or in rules ap­proved by the Leg­is­la­ture.

At the time that Act 21 was ap­proved by the Re­pub­li­can-con­trolled Leg­is­la­ture, sup­port­ers said the aim of the law was to make sure that “un-elected bu­reau­crats” were not not as­sum­ing power they did not have.

How­ever, Judge Va­lerie Bai­ley-Rihn ruled the DNR had suf­fi­cient power to con­sider en­vi­ron­men­tal im­pacts of wells. She cited the state’s Pub­lic Trust Doc­trine, which con­fers author­ity to the DNR to pro­tect wa­ter­ways.

She also cited a land­mark state Supreme Court de­ci­sion in­volv­ing the Vil­lage of East Troy in Wal­worth County and the im­pact a mu­nic­i­pal well would have on Lake Beu­lah. The jus­tices in a 7-0 de­ci­sion said the DNR had the duty to con­sider the im­pact of a large well on the state wa­ters.

The Wis­con­sin Water Al­liance, a re­cently formed group, said the judge ig­nored Schimel’s opin­ion and pre­dicted the case will be over­turned. “This is an ill-ad­vised and se­ri­ously flawed de­ci­sion,” the group said in a state­ment.

The rul­ing was a vic­tory for Clean Wis­con­sin, an en­vi­ron­men­tal group, and the Pleas­ant Lake Man­age­ment District of Coloma in Waushara County.

Clean Wis­con­sin ap­plauded the de­ci­sion. A spokesman for the DNR said the agency had no im­me­di­ate com­ment be­cause it was re­view­ing the rul­ing.

“Th­ese huge high-cap wells pump mil­lions of gal­lons of water ev­ery day, in an area of the state where streams are dry­ing up and lakes lev­els are fall­ing,” said Katie Nekola, gen­eral coun­sel for Clean Wis­con­sin, in a state­ment.

“Water is not in­fi­nite; it’s DNR’s job to man­age water with­drawals so that a few users don’t take more than their share,” Nekola said.

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