SB 291 Emerges, Second Groundwater Bill of Fall 2015

A second fall 2015 groundwater bill has emerged, SB 291, authored by Senator Rob Cowles of Green Bay (http://docs.legis.wisconsin.gov/2015/proposals/sb291). A hearing where the public can make their voices heard has been scheduled for October 13 in the Capitol, 10:00 AM, room 411S.

Sen. Cowles’ bill is broader and more complicated than the previous proposal of Senator Gudex, and takes some time and simplification to explain.

Interests seeking to gain or maintain unrestricted access to groundwater will likely favor this bill as it rolls back lake and stream and wetland protections gained through court decisions. These interests (Wisconsin Manufacturers and Commerce, Wisconsin Potato and Vegetable Growers Association, and Dairy Business Association and others) argue that without such access economic development and investment in Wisconsin will decline, and that protections offered in this bill sufficiently protect surface waters.

For lake, stream, and wetland advocates, major concerns in the bill might boil down to these:

  1. Protections from pumping for surface waters are substantially rolled back; thus pumping from the cumulative number of wells from multiple users would in principal be allowed to dry almost any lake or stream or wetland in Wisconsin.
  2. Allows for the creation of “SRAs” – Sensitive Resource Areas – that might repair water bodies that are decimated by groundwater pumping, but …
  3. … creates a convoluted and political process for designating SRAs seems insurmountable, and that may guarantee few, if any, SRAs will ever be created, and thus few, if any, water bodies will be repaired.
  4. Requires DNR to evaluate and model the hydrology of four Waushara County Lakes.
  5. Provides “forever approvals” for owners of high capacity wells and allows for water pumping rights to be sold with property.

Let’s take these one by one:

  1. Protections from pumping for surface waters are substantially rolled back; thus pumping from the cumulative number of wells from multiple users would in principal be allowed to dry almost any lake or stream or wetland in Wisconsin.

Lake and stream owners and advocates won two important victories in courts during the last few years that provide some protections from new (not existing) high capacity wells. This bill eliminates the protections from the cumulative pumping of multiple wells. So if, for instance, 50 wells on a landscape are drawing down a lake’s level by 3 feet, DNR would still be required to approve a 51st, 52nd, 53rd, etc. well, and even keep on approving wells after the lake had completely dried. The specific language in the bill is in Section 4 (page 6, lines 7-11) which limits DNRs authority to the language in the bill.

  1. Allows for the creation of “SRAs” – Sensitive Resource Areas – that might repair water bodies that are decimated by groundwater pumping, but …

SRAs aren’t well-defined in the bill, it seems to me, except as something that needs to be enacted as a bill approved by the legislature defining the SRA in statute. Apparently they are to be designated one water body at a time for water bodies that are impacted by high capacity wells. For the Hancock area lakes, for instance, where some 15 lakes might be considered excessively pumping impacted, 15 SRAs would have to be designated requiring 15 bills and 15 changes in statutes.

In the SRA designation process (see below), DNR is required to evaluate the pumping impacts on a water body and recommend regulations to the legislature to repair impacted waters. Presumably these measures might be required if the legislature actually designates the SRA.

  1. … creates a convoluted and political process for designating SRAs that may guarantee few, if any, SRAs will ever be created, and thus few, if any, water bodies will be repaired.

The process for designating SRAs is:

– A groundwater professional, presumably hired by a local lake or river or wetland group, provides information to DNR that groundwater pumping is or likely is causing a reduction in streamflow or lake level (wetlands are not considered) below its “minimal” level. (“Minimal” is a problem – see the below.)

– DNR must request approval from the legislature’s joint committee on finance to evaluate and model the hydrology of the area. If that committee provides an approval, DNR must then do the evaluate and model the area’s hydrology

– Upon completion of the evaluation, DNR must issue a decision on whether it recommends that the area be designated as an SRA and what measures might remedy surface water harms.

– Public hearings are then conducted on the decision.

– DNRs decision can then be contested in legal proceedings.

– Once legal proceedings are completed, the DNRs report is given to the chief clerk of each house of the legislature for distribution to “appropriate legislative standing committees.”

– At this point the legislature may or may not take up legislation to declare an SRA.

Several problems are apparent. Specifying that a water body must be below its “minimal” level has this concern: Suppose a stream goes dry once every 50 years during extreme droughts, but now groundwater pumping makes the stream permanently dry. It would seem that stream in ineligible to become an SRA under this bill’s language.

The way to declare an SRA seems unusual, cumbersome, and rife for political roadblocks. If central Wisconsin were to nominate all of its impacted water bodies to be SRAs, dozens of processes would have to go forward simultaneously. It has been traditional to leave decision making about such things up to agencies or to boards like the Natural Resources Board. Having to go to the legislature – twice! – and getting a bill passed seems an insurmountable hurdle.

  1. Requires DNR to evaluate and model the hydrology of four Waushara County Lakes.

The four lakes are Long, Huron, Pleasant, and Plainfield. Evaluations and models have already been done for the area, and are available for additional assessment of what measures will be required for the impacted lakes.

  1. Provides “forever approvals” for owners of high capacity wells and allows for water pumping rights to be sold with property.

As with the Gudex bill, the Cowles bill makes an approval of a high capacity well virtually permanent. Currently, high capacity wells need to be approved when a well is reconstructed or when property is transferred. At that time the high capacity well approval can be reviewed with respect to harms on surface waters or additional demands for groundwater that may have resulted since the original approval. The proposed change has the consequence that waters of the state are permanently transferred to private parties, taking Wisconsin closer to western water law where public water becomes private property that is unavailable to the public, and that a tool to restore pumping-impacted waters is lost.

A report on the Gudex bill hearing can be found here: http://www.jsonline.com/news/statepolitics/fight-over-high-capacity-wells-lands-at-the-capitol-b99592135z1-331066971.html

One thought on “SB 291 Emerges, Second Groundwater Bill of Fall 2015

  1. It will be soon that we won’t need to talk about ground water if this bill SB-291 passes. Get our water back bill will be the next on the agenda.

    Like

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