The first of possibly several bills this legislative season affecting groundwater and high capacity wells was introduced on August 26 by sponsors Senators Gudex (R-Fond du Lac, Marklein (R-Spring Green), Wanggaard (R-Racine), and Moulton (R-Chippewa Falls).
The bill, 2015 SB 239, would eliminate the need to obtain “approvals” from DNR for certain activities concerning existing high capacity wells. “Approvals” are a regulatory device similar to “permits.”
A high capacity well approval is required by statute before the well is initially constructed. In addition, an approval for a high capacity well may be needed when:
* the well wears out and needs to be replaced by a new well.
* the property that a high capacity well sits on is sold.
* certain repairs are needed.
Much controversy exists over groundwater and pumping from high capacity wells. Wisconsin is in some confusion on how, and even whether, to manage groundwater. Groundwater pumping management in statute is weak. Though two recent legal proceedings (Lake Beulah and Richfield Dairy) have established some protections based on the state’s public trust duties, Wisconsin is far from having a comprehensive management package.
The crux for groundwater pumping management lies in the fact that all water is connected, so when groundwater is pumped, water levels in aquifers drop along with levels in lakes, wetlands, and streams. It’s always a matter of degree: pumping a little groundwater might cause little drop, whereas pumping a larger amount could dry lakes, streams and wetlands. This has been the case for dozens of water bodies in the Wisconsin Central Sands.
The potential unintended consequences of streamlining approvals for existing high capacity wells is a subject of some debate. The nub of the matter comes down to two points:
* Permanent transfer of state waters to private parties? If high capacity well approvals can be automatically transferred to a property buyer, there is an appearance that waters of the State have been permanently transferred to a private party who can then effectively sell the ability to pump that water to other private parties. This may take Wisconsin closer to western water law where public water becomes private property that is unavailable to the public and can be sold to others.
* Loss of a tool to restore pumping-impacted waters? Where existing high capacity wells are damaging surface waters, the Department of Natural Resources has asserted it could modify pumping regimes when an existing well requires a new approval, such as when a well wears out and needs replacing. This is an inefficient way to restore a balance between groundwater pumping and surface water vitality, as a well could last for decades. But it may be the only tool available to help the home owners on Long Lake, the citizens who are now unable to swim at the Portage County beach at Wolf Lake, or the myriads of other impacted water bodies in the central sands.
A Case Study –Replacement Well Request Near an Impacted Surface Water
DNR recently received an application for an approval to replace a failing high capacity well (in addition to applications for two new wells) in the vicinity of Stoltenburg Creek. Stoltenburg is strongly pumping-impacted, and so this presents a case in decision-making when a replacement well is being requested in the vicinity of an impaired water body.
Stoltenberg is a Class I trout stream and designated Exceptional Resource Water surrounded by high capacity wells. The stream at one time was 3 miles long, but it has been shrinking and flowing at lower rates due to local groundwater pumping.
The upper half mile or so of the Creek is appears permanently dry in places where older trout fishermen report angling in the past. And another half mile dries during high pumping years.
Recent court cases might guide DNR to deny the application for the replacement well, which would put some water back into Stoltenburg Creek (and Lake Emily too), restoring some of its health. However, if SB 239 was in effect no new approval for the replacement well would be required, and hence there would be no opportunity to help restore flows to creek.
SB 239 seeks to streamline high-capacity well approval processes, but might have the unintended consequence of permanently assigning public water to private parties in a way that allows that water to be bought and sold. In addition, it could represent the loss of a tool to restore pumping impacted surface waters.
A mature groundwater management policy could obviate many of the unintended consequences given a goal of maintaining public rights in navigable waters: all groundwater users would adapt together to share amounts of groundwater consistent with public rights. One party whose well went bad would not be in the position of either-you-get-water-or-you-get-nothing. New water subscribers could thusly also be accommodated.
Though new ground seems to be broken every month on groundwater pumping, it seems Wisconsin is still far away from recognizing groundwater, lakes, wetlands, and streams are a single system that has to be managed as a whole. Until Wisconsin finds a way forward, it may be tricky business to develop policies that favor automatic re-approvals of high capacity wells.