A legal opinion issued by Attorney General Brad Schimel (May 10 2016) would roll back protections for Wisconsin lakes, streams, and wetlands from the impacts of high capacity wells. Short-term, a flood gate could be open for wells that were previously denied, wells that were approved but with conditions (such as a limit on how much water could be pumped) to reduce their impacts, and the 160 wells that are in review to assess their potential impacts. Longer term could see a return to the “wild-west” style water management where high capacity well approvals are virtually automatic, and where new approvals would be issued even as the last drops of lakes and streams are being drained.
A decision has not been reached at this time by DNR as to whether the agency will adopt the AG’s opinion and halt environmental reviews for high capacity wells.
The AG’s opinion was reportedly met with concern from lake, stream, and wetland advocates, and with enthusiasm from farm and business interests. The Wisconsin State Journal related that Americans for Prosperity (a well known national advocacy group founded by Charles and David Koch), praised the decision as “… a major victory of voters over bureaucrats.”
What’s the issue?
Prior to 2011, with few exceptions, applications for high capacity wells were granted without regard for harms on lakes, streams, and wetlands. The 2011 Supreme Court Lake Beulah decision changed that, holding that the Department of Natural Resources had an obligation to consider whether a proposed high capacity well would cause significant harms to water bodies.
DNR chose to minimize the reach of Beulah, asserting that even if a plethora of existing high capacity wells were already drying a surface water, a new high capacity well that contributed only incremental new damage would be approved. And then another and another, even as a lake or stream completely dried. The 2014 Richfield Dairy decision ruled that DNR’s choice to ignore cumulative impacts contradicted Beulah, and since this time lakes, streams, and wetlands have enjoyed some protections from the impacts of new high capacity wells.
While protections for surface waters were being advanced in the courts, the legislature passed, and the Governor signed, 2011 Wisconsin Act 21, which states, “No agency may implement or enforce any standard … unless that standard … is explicitly required or explicitly permitted by statute…”
Does Act 21 trump the Beulah decision? The Wisconsin Assembly asked the Attorney General for his opinion on this.
And the Attorney General opined that it did.
The DNR’s legal staff is examining the AG’s opinion. The agency is under no obligation to adopt that opinion, but is widely expected to do so.