Kaul withdraws opinion on high capacity well permitting
The Wisconsin Department of Natural Resources once again has the power to put conditions on high capacity well applications that take into account their impact on surrounding bodies of water.
Wisconsin Attorney General Josh Kaul has withdrawn the opinion of former Attorney General Brad Schimel and stated the DNR has broad authority and a general duty to manage, protect and maintain waters of the state.
High capacity wells have the ability to withdraw more than 100,000 gallons of water a day and are usually used to draw water out of the ground for agricultural uses, like irrigation, or other business uses, according to the DNR.
In 2018, the last year with available data, there were 14,000 high capacity wells in Wisconsin, according to the DNR.
One of the issues surrounding the placement of high capacity wells is their effect on nearby bodies of water, above and below the ground. If too many high capacity wells inhabit an area, there’s a risk of the underground water table being drawn too low, resulting in the water levels in streams, rivers and lakes also going down.
Amber Smith, the vice president of programs and government relations for Clean Wisconsin, said Schimel’s earlier ruling told the DNR not to look at the impacts on natural resources when reviewing applications for high capacity wells, a decision that did not represent the public trust doctrine, which gives authority to the DNR to protect waterways.
“That (opinion) would lead to a lot of permits being issued that just weren’t sustainable and didn’t even look at whether their water use was sustainable or not,” she said. “And since that opinion, the state of Wisconsin has given away billions of gallons of water, virtually unchecked.”
But Wisconsin Manufacturers & Commerce disagrees with Kaul’s rollback of Schimel’s opinion and with the concerns of environmental groups. Scott Manley, the executive vice president of government relations for the organization, said there’s a concern that businesses that require high capacity wells may be injured by the change.
“We represent businesses in every sector of the economy and many sectors need water,” he said. “And many of these businesses are not hooked up to municipal water systems.”
Of particular concern to Manley are agricultural operations that require wells to water crops and provide drinking water to animals. Manley said environmental groups have made no secret about not wanting large dairy operations in the state.
“This is not about a farmer having a well to provide drinking water to cows or to grow potatoes,” he said. “It’s about preventing businesses they
don’t like from having permits.”
Manley said Kaul’s reversal is also in violation of guidelines for the attorney general, which don’t allow for Kaul to get involved in current litigation, he said, because it could sway the outcome. High capacity wells are at the center of a case waiting to be taken up by the Wisconsin Supreme Court.
But Schimel’s opinion was issued while the law in question was the subject of active litigation in a separate case, which WMC did not oppose at the time.
Nine wells were challenged by Clean Wisconsin in late 2016 because the wells were draining lakes, threatening water resources and affecting private wells, the group said.
The Central Sands region in the middle of the state was one of the areas of most concern, according to the group, because lakes, rivers and streams were all showing the impacts of the high-capacity well withdrawals on fisheries and wildlife habitats.
The Little Plover River has been an often-used example because it will run dry in some parts each summer due to high capacity wells in the area, environmentalists say.
In 2017, a Dane County Circuit Court judge ordered that seven of the nine wells be vacated or invalidated, and one was remanded for consideration.